Scalia opinion on EPA regulations could block Trump’s wall–ABA Journal

BY DEBRA CASSENS WEISS

Updated: President Trump’s plan to build a wall along the Mexican border could hit an obstacle if he relies on a 2006 law for funding authority.

The obstacle is a June 2015 majority opinion by Justice Antonin Scalia that said the Environmental Protection Agency did not properly consider the costs when it decided to limit mercury emissions from power plants, according to a New York Times op-ed by three University of Chicago law professors.

At issue was a Clean Air Act provision that required EPA regulation of hazardous emissions from power plants when “appropriate and necessary.” Scalia said that phrase required the EPA to consider costs. “No regulation is ‘appropriate’ if it does significantly more harm than good,” he wrote.

Trump’s executive order, signed on Wednesday, calls for immediate construction of the wall. But he needs funds to build it, and Mexico has said it won’t pay. If Trump asks Congress to pass a new law, Senate Democrats could mount a filibuster. His executive order cites the Secure Fence Act of 2006, according to this story in the Atlantic, and he may be relying on it for funding authority, according to the op-ed.

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