Justice Scalia made a huge factual error in his dissenting opinion in the EPA case handed down earlier this week, claiming that the EPA’s position in a 2001 case in which he wrote the ruling was the exact opposite of what it actually was.
It isn’t unusual for a typo or an incorrect citation to find its way into a Supreme Court opinion, but a major misstatement of an earlier case? That appears to be unprecedented. It’s now been changed, but without acknowledging that the dissent is at least partly based upon that error:
Legal experts say Justice Antonin Scalia erred in his dissent in the 6-2 decision Tuesday to uphold the Environmental Protection Agency’s authority to regulate coal pollution that moves across state lines. The Reagan-appointed jurist argued that the majority’s decision was inconsistent with a unanimous 2001 ruling which he mistakenly said shot down EPA efforts to consider costs when setting regulations.
“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 author of the ruling that Scalia mischaracterized? Scalia himself.
As of Wednesday morning, the Supreme Court has corrected Scalia’s opinion. The relevant passage now excludes his erroneous mention of the EPA and replaces the header with a new one that drops an EPA reference.
The new passage reads as follows: “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.”
The old header was, “Plus Ça Change: EPA’s Continuing Quest for Cost-Benefit Authority.” The new one reads, “Our Precedent.”
I would think more would be required here than just editing it out without some discussion of how that affects the reasoning of the dissent.