Supreme Court Rejects EPA’s Regulation of Power Plants’ Emissions of Mercury and Other Toxins

July 3, 2015

By Meteor Blades (Timothy Lange)

The U.S. Supreme Court plunked a setback into the lap of the Environmental Protection Agency Monday [6-29-15] by trashing the agency’s regulation of emissions of mercury and other air toxins (MATS) from electricity-generating plants. The court overturned a lower-court decision in the case of Michigan v. EPA stating that the agency had acted reasonably when it chose not to consider compliance costs first in its effort to control those emissions. The justices split 5-4, with the four liberals on the side of the EPA and the four conservatives and Justice Anthony Kennedy on the side of industry and the states that had sued.

The ruling—Michigan v. Environmental Protection Agency and two other consolidated cases—is a major disappointment for environmentalists and drag on the Obama administration’s efforts to reduce toxic emissions. While it doesn’t bar the EPA from regulating these toxins, it means the agency has to start over, this time considering costs as one of the factors BEFORE making a decision about whether to limit emissions.

It was under the Clinton administration that the EPA began work on the mercury and air toxins rules. That was stopped when George W. Bush became president and restarted when President Obama was elected.

The EPA considered cost irrelevant to its decision to regulate MATS. It agreed that it could have interpreted a provision in the law that cost is relevant but “chose to read the statute to mean that cost makes no difference to the initial decision to regulate,” the majority decision written by Justice Antonin Scalia stated. The agency argued that it was appropriate to consider only public health risks—not industry costs—when it decided to regulate emissions from coal- and oil-fired generation plants.

The agency’s decision raised objections from industry and more than 20 states. They argued that the regulations would force consumers to pay more for electricity and harm the coal industry. The regulations would cost $9.6 billion annually, according to EPA estimates, but it would provide health benefits of at least $33 billion.

At first glance, it might seem obvious that the EPA should evaluate costs to industry of a new pollution regulation from the get-go. But history of amendments to the Clean Air Act show that nearly two decades of agency inaction spurred Congress in 1990 to force the EPA to establish rules to protect public health. Under those amendments, costs were only to be considered later in the process.

Thus the EPA’s approach on power-plant mercury emissions was not unusual. It was the way the agency had handled the matter of regulatory costs in other areas for decades. It seemed as if the matter was settled. Indeed, the court had said in previous cases that costs need only be weighed if Congress had made a direct statement to that effect. So the view of some attorneys when Court review of the matter was confirmed last November was that the justices wouldn’t be taking on the issue unless they were ready to rethink their earlier decisions. Sure enough.

More on the Ruling

Most industries, including electricity-generating plants fueled by coal and oil, are subject to regulation under the Clean Air Act. But Congress added a separate regulatory framework for power plants, stating that the EPA should limit their emissions if it concluded that such was “appropriate and necessary.” The precise meaning of those two words within the parameters of the congressional mandate got plenty of discussion during the oral arguments before the Court in March.

As the result of a study of power-plant emissions completed in 2000, the EPA had concluded that mercury emissions from those facilities were a menace to human health and the environment. In 2005, however, the Bush administration pressured the agency to declare that the emissions were not a threat and needed no regulation. But the U.S. Court of Appeals for the District of Columbia Circuit ruled in 2008 that the agency could not without good reason remove pollutants from the list of toxins once it had added them.

Consequently, the EPA under President Obama labeled mercury emissions “highly toxic” and “a threat to public health and the environment.” Given that power plants were the single largest source of U.S. mercury emissions, the agency concluded that a regulation was indeed appropriate and necessary. It did so without first considering the cost of complying. That, it said, would be done when specific pollution standards were established, which happened in 2011. The industry and state lawsuit went before a panel of the D.C. Circuit Court, which ruled 2-1 in favor of the EPA.

Industry and the plaintiff states argued that the EPA’s public health benefits—which the agency put at $33 billion to $90 billion, were way overstated. More like $4 billion to $6 billion, it was claimed. But the industry only counted benefits from the control of mercury while the EPA factored in the limits on other toxins—such as arsenic, acid gas, nickel, selenium and cyanide—that would occur in tandem when mercury was filtered out.

Mercury has been linked to cancer in adults and nerve disorders in children. The government stated in its Supreme Court brief that the regulations would prevent “up to 11,000 premature deaths each year” and “IQ loss to children whose mothers consume noncommercial freshwater fish caught by recreational anglers in modeled watersheds during pregnancy.”

During oral arguments, lawyers for the EPA noted that the industry’s claims that it would be run out of business by the emissions rules were unfounded since 90 percent of costs of compliance had already been paid as industry installed the necessary equipment.Φ

Originally posted to Meteor Blades on Mon Jun 29, 2015 at 08:27 AM PDT. Also republished by Daily Kos.
Meteor Blades (Timothy Lange) is a staff writer at the Daily Kos.

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