Justice Scalia’s counterideological snafu

How is it possible that Justice Scalia and his clerks missed the error in his statement that the EPA had tried to use cost-benefit analysis to justify the regulation at issue in Whitman? How did the other justices and their clerks miss it, too? The answer is that the mistake made no difference whatsoever to the legal analysis. It signifies nothing about anything except that people sometimes make mistakes.

One of the many ironies of the argle-bargle in the press and the blogs–aside from the several listed by Jonathan Adler–is that everyone gets the political valence of the mistake wrong. The narrative is that the mistake exposes once and for all what we knew all along: that Scalia allows his political biases (or even partisan biases) to guide his legal reasoning. But Scalia was objecting to EPA’s use of cost-benefit analysis–a decision-procedure normally favored by conservatives and loathed by most (although not all) liberals–when the statute (in his view) did not allow for it. Scalia’s preferred resolution of this case would have sent the regulation back to EPA for revision, it is true. But it would also have required EPA in the revised regulation to impose stricter controls at greater cost to industry.

Indeed, the majority makes just this point. In response, Scalia denies that his interpretation would lead to overregulation, but I confess I can’t follow his convoluted reasoning. If the EPA, wielding cost-benefit analysis, chose the most efficient regulation, then any other regulation must by definition be less efficient (or I suppose equally efficient, which I think is Scalia’s limited claim, but that also seems quite unlikely). If downstream states are going to reach attainment at higher cost to upstream states, then this cost will be passed on to industry in upstream states. Because statutes are written in broad terms and directed at reducing harmful activity, CBA typically leads to less regulation than that required by a literal interpretation of a statute, not more. That’s why liberals have traditionally been hostile to it.