18
MICHIGAN v. EPA KAGAN, J., dissenting
with considerable success. At any rate, neither those challenging this rule nor the Court remotely suggests that these regulatory regimes have done “significantly more harm than good.” Ante, at 7. So when making its “appropriate and necessary” finding for power plants, EPA had good reason to continue in the same vein. See, e.g., Entergy, 556 U. S., at 236 (opinion of BREYER, J.) (noting that the reasonableness of an agency’s approach to considering costs rests in part on whether that tack has met “with apparent success in the past”). And that is exactly how EPA explained its choice. Stating that it would consider the “costs of controls” when “developing a regulation,” the Agency noted that such an “approach has helped build flexibility in meeting environmental objectives in the past,” thereby preventing the imposition of disproportionate costs. 65 Fed. Reg. 79830. Indeed, as EPA further commented in issuing its rule, it would seem “inequitable to impose a regulatory regime on every industry in America and then to exempt one category” after finding it represented “a significant part of the air toxics problem.” 77 Fed. Reg. 9322 (quoting 136 Cong. Rec. 36062 (1990) (statement of Sen. Durenberger)). The majority’s attempt to answer this point founders on even its own statement of facts. The majority objects that “the whole point of having a separate provision about power plants” is to “treat[ ] power plants differently from other stationary sources.” Ante, at 11 (emphasis in original). But turn back about 10 pages, and read what the majority says about why Congress treated power plants differently: because, as all parties agree, separate regulatory requirements involving acid rain “were expected to have the collateral effect of reducing power plants’ emissions of hazardous air pollutants, although the extent of the reduction was unclear.” Ante, at 2; see supra, at 4–5. For that reason alone (the majority does not offer any other), Congress diverted EPA from its usual regulatory
