On April 15, 2016, EPA issued its long awaited final cost consideration for the embattled Mercury and Air Toxics Standards (or MATS) rule. As I mentioned last summer, the Supreme Court of the United States held that the EPA must consider costs before deciding a regulation is appropriate and necessary. In its decision, SCOTUS did not invalidate the rule and when the case came back to the D.C. Circuit Court, they did not stay the MATS rule.

In its filing, EPA said it looked at compliance costs based on four different metrics: revenues, capital expenditures, retail electricity rates and the potential impact on grid reliability. EPA found that the projected annual cost of compliance would be between 2.7–3.5 percent of annual electricity sales from 2000 to 2011. The capital cost of compliance would be between 3–5.9 percent of total annual power sector capital expenditures over a ten year period. EPA asserted that MATS would not impact grid reliability and retail electricity prices would increase by about .3 cents per kilowatt hour.

The D.C. Circuit must now review the analysis and make a decision on the MATS rule. While MATS is one of the most expensive EPA regulations in history, it is also one of the most effective.

In its original analysis of costs and benefits when the final rule was issued in 2012, EPA found that for every dollar spent to reduce toxic pollution from power plants, Americans would see up to nine dollars in health benefits. However, on March 14, Michigan and other states (Alabama is one) filed a petition for certiorari with SCOTUS asking the high court to review the decision to allow EPA to perform a cost analysis without staying the rule.

The issue the petitioners present is when an agency promulgates a rule without any statutory authority, may a reviewing court leave the unlawful rule in place? The petitioners argue that the D.C. Circuit Court’s remand to EPA not only conflicts with the SCOTUS decision that EPA should have considered costs, but it also conflicts with the effect of decisions of two other circuits.

On May 6, EPA filed a brief urging the SCOTUS to deny review of the MATS rule. EPA points to their finding that costs were reasonable cures the legal defect at issue last summer. EPA also argues that the petitioning states lack standing where the MATS rule is imposed directly on individual power plants and thus does not trample on any legally protected state interests.

Where coal and oil-fired plants are the largest industrial source of toxic air emissions in the U.S. and power plants are responsible for 50 percent of all U.S. mercury emissions, these unending legal challenges to the MATS rule could jeopardize the protections from toxic pollution that many communities are receiving.

Gasp continues to strongly support the MATS rule and we encourage you to urge Alabama Attorney General Luther Strange to stop wasting taxpayer money fighting these important public health protections. Take action today!

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