The court case in question, EPA v. Homer, revolved around the Environmental Protection Agency’s authority to regulate coal pollution that moves across state lines. The court ruled 6-2 in favor of the EPA, with Justice Scalia and Justice Thomas dissenting.
In Scalia’s dissent, he stated, “This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting [National Ambient Air Quality Standards].”
There is just one tiny problem with this portion of Scalia’s dissent—it is completely wrong. In the case referenced, the EPA was defending its refusal to consider cost as a counter-weight to health benefits when setting certain air-quality standards. It was the trucking industry that wanted the EPA to factor in cost with its standards. The ruling in that case was 9-0 in favor of the EPA.
The author of the ruling? Justice Scalia. Talk about insult to injury.
University of California-Berkeley law professor Dan Farber took note of the mistake, calling it “embarrassing” and a “cringeworthy blunder.”
“Scalia’s dissent also contains a hugely embarrassing mistake. He refers to the Court’s earlier decision in American Trucking as involving an effort by EPA to smuggle cost considerations into the statute. But that’s exactly backwards: it was industry that argued for cost considerations and EPA that resisted. This gaffe is doubly embarrassing because Scalia wrote the opinion in the case, so he should surely remember which side won! Either some law clerk made the mistake and Scalia failed to read his own dissent carefully enough, or he simply forgot the basics of the earlier case and his clerks failed to correct him. Either way, it’s a cringeworthy blunder.“
Realizing the mistake, the Supreme Court quietly redacted Scalia’s dissent. It now reads, “This is not the first time parties have sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted the contention that EPA should consider costs in setting NAAQS.”
They also changed the header. It used to read, “Plus Ça Change: EPA’s Continuing Quest for Cost-Benefit Authority.” However, it now reads simply, “Our Precedent.”
Watch the news report below on Justice Scalia’s mistake.