Predicting the Winners in EPA Cases

Sorry, it’s taken me awhile to analyze the Michigan v. EPA, which the Supreme Court heard back on March 25.  The case asks whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.  I predict a 5-4 decision in favor of the Petitioners.

Figure 1.

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As Figure 1 shows, the total question count favors slightly the Petitioners (Michigan), whose side received 5 fewer questions than the Respondents (EPA/SG and Industry Respondents).

The question count by Justice suggests a split along ideological lines. Four conservative Justices asked more questions to the Respondent’s (EPA) side: Roberts (+16), Scalia (+4), Kennedy (+1), and Alito (-8).  Four liberal Justices asked the Petitioners (Michigan) more questions: Ginsburg (+2), Breyer (+3), Sotomayor (+7), and Kagan (+9).  The differential for Justice Kennedy is just one question, so he appears to be the swing vote again!  Based on these numbers, I will go with a victory for the Petitioners.

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