Judicial modesty is a virtue embraced principally in dissent, it seems. Congress directed the EPA to study the problem of power plant emissions, a major source of pollution because coal burns inefficiently. The EPA is an agency with substantial scientific expertise. But, according to the Supreme Court's conservative majority the EPA irrationally failed to consider costs in its calculus.
In the minority's view Justice Scalia's opinion is a dressed up version of the usual talk show laments - EPA out of control, etc. The four dissenters, speaking through Justice Elena Kagan, declare:
Despite that exhaustive consideration of costs, the Court
strikes down EPA’s rule on the ground that the Agency
“unreasonably . . . deemed cost irrelevant.” On the majority’s theory, the rule is invalid because EPA
did not explicitly analyze costs at the very first stage of
the regulatory process, when making its “appropriate and
necessary” finding. And that is so even though EPA later
took costs into account again and again and . . . so on. The
majority thinks entirely immaterial, and so entirely ignores,
all the subsequent times and ways EPA considered
costs in deciding what any regulation would look like.
That is a peculiarly blinkered way for a court to assess
the lawfulness of an agency’s rulemaking. I agree with
the majority—let there be no doubt about this—that EPA’s
power plant regulation would be unreasonable if “[t]he
Agency gave cost no thought at all.” But that is just not what happened here.