In April, I wrote about the new Mercury and Air Toxics Standards (MATS) rule that had just gone into effect:
“GASP strongly supports the MATS rule because it will be crucial in improving air quality and public health. Until recently, there were no national limits on emissions of mercury and other toxics from power plants. […] These toxic air pollutants are known or suspected of causing cancer and other serious health effects including premature death, heart attacks, bronchitis and asthma.”
On June 29, the United States Supreme Court ruled on whether it was “reasonable” for EPA to not consider costs when deciding to regulate mercury and air toxics emitted from power plants. In a 5-4 decision, with Justice Antonin Scalia authoring the majority opinion, the Supreme Court held that the EPA must consider costs before deciding a regulation is appropriate and necessary.
However, the holding was quite narrow: “we need not and do not hold that the law unambiguously required the Agency, when making this preliminary estimate, to conduct a formal cost-benefit analysis […] It will be up to the Agency to decide […] how to account for cost.”
Putting that decision into real world terms, the Supreme Court did not invalidate the MATS rule. They also gave very little guidance on how EPA is to determine costs; EPA has been given deference in how it will account for costs.
Now the MATS rule will go back to the D.C. Circuit Court for further consideration. The D.C. Circuit could invalidate or uphold the rule. Surprisingly, the Supreme Court gave very little insight into how this ruling will affect the Clean Power Plan and its opponents’ key legal arguments. Whether the D.C. Circuit upholds or invalidates the rule could have a direct impact on the future legal challenges to the Clean Power Plan (to be finalized later this summer).
Although the Supreme Court ruled more narrowly than they could have, I still find the arguments in Justice Elena Kagan’s dissenting opinion more persuasive. She correctly points out that it would have been very difficult, even impossible, for EPA to measure costs at the initial rulemaking stage. Justice Kagan also pointed out that the Supreme Court should have reviewed EPA’s regulatory process with caution and care. She correctly asserts that simply because judges might have made different regulatory choices it will not suffice to overturn EPA’s actions where Congress left such discretion up to the EPA.
I most agree with Justice Kagan when she says “the result is a decision that deprives [EPA] of the latitude Congress gave it to design an emissions-setting process sensibly accounting for costs and benefits alike. And the result is a decision that deprives the American public of the pollution control measures that [EPA], acting well within its delegated authority, found would save many, many more lives.”
Although the Supreme Court’s ruling on MATS was disappointing, the mercury regulations are still in place. Moreover, most power plants were forced into compliance when the rule took effect in April, which means the emissions control systems are already installed.
Some media reports have greatly overblown what the ruling means — some declaring it a lethal blow to the regulation of mercury and air toxics. This is simply not the case. It was not a “big win for Alabama Power” and the utilities industry, as the Birmingham Business Journal put it. The LA Times editorial board did a good job of explaining what the Supreme Court ruling did and, importantly, did not do.
It’s important to remember the local context and benefits of continuing to reduce emissions of mercury and air toxics. The Birmingham metro is home to about 1-in-5 Alabamians, as well as one of the nation’s largest mercury polluters: Alabama Power’s Gaston Plant in Shelby County.
How the D.C. Circuit Court rules on remand could affect legal challenges to the Clean Power Plan — which is expected to roll out later this year. This show is not over by any means. In fact, it may be just beginning.
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