Justice Antonin Scalia egregiously mischaracterized a previous Supreme Court decision in a dissent released yesterday. The Court has already corrected the error, which involves the authority of the Environmental Protection Agency; making the situation especially unusual is the fact that the decision that was characterized erroneously was written by Scalia himself in a unanimous 2001 ruling. From Talking Points Memo:
“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],” Scalia wrote in his dissent, which was joined by Justice Clarence Thomas.
The problem: the EPA’s position in the 2001 case was exactly the opposite. The agency 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. The 9-0 ruling sided with the EPA.
The factual error has been corrected on the Supreme Court’s site, but the correction causes Scalia’s dissent to read strangely. Essentially, his dissent now argues that the EPA is always wrongfully trying to make its own rules rather than following Congress—but in doing so he’s citing a case in which he himself argued that the EPA had acted correctly by following Congress. For more on the situation, check out the linked post by Berkeley professor Dan Farber.
