(Photo by Michelle Carl via Creative Commons)

(Photo by Michelle Carl via Creative Commons)

Federal judges uphold EPA mercury and toxics standards

©2014 E&E Publishing, LLC
Republished with permission

By Jeremy P. Jacobs

Federal judges Tuesday upheld U.S. EPA’s air standards for mercury and other hazardous pollutants in a major win for the Obama administration.

The U.S. Court of Appeals for the District of Columbia Circuit said the agency acted reasonably in promulgating its 2012 mercury and air toxics, or MATS, rule, which was the most significant EPA regulation of President Obama’s first term.

It requires coal- and oil-burning power plants to slash emissions over the next several years by installing control technologies. EPA estimated that the standards — the first of their kind — would cost the electric generating industry $9.6 billion annually, one of the most expensive regulations ever issued by the agency.

The utility industry as well as several states challenged various aspects of the regulations in the large, complex case. Their principal argument, however, was that EPA should have considered costs when determining whether it was “appropriate and necessary” to go forward with the standards.

EPA contended that the Clean Air Act did not mandate the agency consider costs, only that it determine that the emissions posed a significant health risk.

In a 2-1 ruling, the D.C. Circuit agreed.

“On its face,” the majority opinion said, the Clean Air Act “neither requires EPA to consider costs nor prohibits EPA from doing so. Indeed, the word ‘costs’ appears nowhere” in that section of the law.

It added: “The question remains only whether EPA’s interpretation is permissible. Petitioners cannot point to a single case in which this court has required EPA to consider costs where the [Clean Air Act] does not expressly so instruct.”

The regulations marked a key change in agency policy after Obama took office. In 2000, EPA had determined that mercury and other air emissions from oil- and coal-burning power plants posed a risk to public health and, therefore, met the “appropriate and necessary” standard for regulation.

In 2005, however, EPA reversed itself and delisted the power plants from the program. Environmental groups challenged that decision in court, and the D.C. Circuit threw it out.

Fast-forward to the Obama administration, when EPA returned to the 2000 finding before issuing the MATS standards. The agency estimated that the health benefits of the rule are significant and once fully implemented will prevent up to 11,000 premature deaths and provide $90 billion in health benefits annually.

Nearly every aspect of the regulations was challenged, including EPA’s reasoning and its decision to include all of the hazardous air pollutants such as arsenic, cadmium and nickel in one rule, instead of separate ones. The majority opinion, however, rebuffed every challenge, including criticisms from environmental groups that the rule’s monitoring requirements are insufficient.

The cost issue, however, was the most contentious. The majority opinion was supported by Chief Judge Merrick Garland and Judge Judith Rogers, both Democratic appointees. Judge Brett Kavanaugh dissented from their conclusions regarding costs.

Kavanaugh wrote that consideration of costs is “common sense and sound government practice.” He added that consideration of costs “is no trivial matter.”

“When considering just as a general matter whether it is ‘appropriate’ to regulate, it is well-accepted that consideration of costs is a central and well-established part of the regulatory decisionmaking process,” Kavanaugh wrote.

The majority opinion however, said Kavanaugh’s dissent “rests on a false premise,” noting that other sections of the Clean Air Act expressly instruct EPA to consider costs.

“Basically, petitioners and our dissenting colleague seek to impose a requirement that Congress did not,” the judges wrote. “What they ignore is that Congress sought, as a threshold matter, to have EPA confirm the nature of public health hazards from … emissions. … After that, Congress left it to the expertise and judgment of EPA whether or not to regulate.”

Asking EPA to look at costs before looking at the health effects, they wrote, would be putting the cart before the horse.

EPA said it is “very pleased” that the court upheld the MATS standards.

The decision, it said in a statement, “is a victory for public health and the environment.”

Environmental groups applauded the ruling.

“Today’s legal victory is another giant step forward on the road to cleaner, healthier air,” said Fred Krupp, president of the Environmental Defense Fund, which was involved in the case. “Today, the court recognized that mercury and other dangerous air toxins from coal-fired power plants are a threat to public health and that we should all be protected from them.”

The numerous challengers in the case have a few legal options remaining. They may ask the court to review the ruling en banc, meaning before all the circuit’s judges. They may also ask the Supreme Court to take up the ruling.

If they pursue either avenue — and it is likely they will — they would be bolstered by the forceful dissent of Kavanaugh, one of the nation’s leading conservative judges.

Click here for the ruling.

13 thoughts on “Federal judges uphold EPA mercury and toxics standards

  1. I wonder who the nutjobs are that are still fighting this. It’s like arguing that smoking isn’t bad for your health. We are talking mercury, not CO2. It’s not like there isn’t solid science behind the need to minimize these pollutants. I don’t understand why utilities would fight this because they can simply pass the costs on to ratepayers. Who is bankrolling the fight?

  2. We all need to remember that whatever mercury, arsenic, cadmium, nickel, and carcinogenic organic compounds are in the air end up also contaminating water and land resources. These toxins accumulate and remain in the environment to adversely affect all of us here and everywhere. The idea of climate change makes it imperative that we start recognizing coal for its toxicity and for the perpetual stream of pollution it creates.

  3. Does this ruling impact tar sands processing? Whatever is done at the mine is obviously Canada’s problem. It would be interesting to know, if present in the raw material, how much mercury remains in the diluted bitumen that gets piped down to US refineries. Mercury, being volatile would probably escape somewhere between the in situ extraction mine in Alberta and the exhaust pipes of cars and trucks. Tar sands are probably not too dissimilar to coal, petro geologically speaking.

  4. “Who is bankrolling the fight?”
    I would assume Peabody Coal and company Inc.

  5. These are existing plants we are talking about and they need to be grandfathered from laws that were enforced 10 years ago. The EPA can’t keep coming up with new laws to make groups like the sierra club happy. These plants were within the confines of the law until the obama administration took over. I don’t have an issue with making new coal fired power plants follow these new laws but now the existing plants who were once within the law. Why doesn’t anyone say anything about the wind farms killing bald eagles and being exempt from fines?

  6. Tom, the process to develop the MATS rule was initiated in 2000, as required by Clean Air Act provisions passed in 1990: http://www.epa.gov/mats/basic.html

    While I understand the political utility of the narrative, to portray these regulations as some all-of-a-sudden fiat by the Obama administration is flat-out false.

  7. Well before the year 2000 they were within regulations and as I said before should have been grandfathered. Forgive me for only saying 10 years; I should have said that they were within regulations when they were built. The obama admin is being influenced to the point of tunnel vision when it comes to the war on coal from the sierra club. In other words they are focused on it more than any other administration; AGREE. I find it hard to believe that one of our most abundant resources has a war declared on it due to propaganda of global warming. The winter we just had in North America should put that to rest. Now what about those eagles I mentioned before? I am right in what I am saying.

  8. 1) The Sierra Club will be delighted to learn about their sweeping political power.

    2) You are correct that the Obama administration is taking stronger steps to enforce the Clean Air Act than prior administrations. However, they did not invent the Clean Air Act. When it was originally passed in 1970, Barack Obama was still a young child in Kenya.

    3) You are wrong about global warming. Also, the MATS rules don’t have anything to do with carbon emissions.

    4) Here are some stories about wind farms and eagles:

    http://www.midwestenergynews.com/2014/01/31/eagle-permits-a-way-forward-for-wind-or-a-license-to-kill/
    http://www.midwestenergynews.com/2013/06/20/wind-wildlife-group-begins-building-bird-death-database/
    http://www.twincities.com/business/ci_22682357/southeast-minnesota-wind-power-project-air-eagle-protection
    http://www.startribune.com/local/187232171.html
    http://www.midwestenergynews.com/2012/02/27/science-scarce-on-eagle-wind-farm-interactions/

    5) Mercury is also bad for eagles:

    http://www.dailyfreeman.com/general-news/20090118/mercury-risingbald-eagles-in-region-face-new-threat

  9. The sierra club is an internal terrorist group. As to the 1970 clean air act (really) a majority of these coal fired plants were built in the 50s and 60s and were within the confines of the law at that time so as I stated before should be grandfathered. No I am not wrong about global warming, it is propaganda. I appreciate the websites but I still believe wind power should be outlawed and yes those companies should be fined 250000 dollars for every eagle they kill which is basically on purpose. When you drive down the road and a bird flies out in front of you and is hit and killed it is an ACCIDENT. These companies have admitted wind turbines kill eagles. I appreciate your opinion but I have found out over time that if someone supports a radical cause they are dangerous and can’t be talked to.

  10. Mercury is more propaganda for someone to complain about.
    Prove that mercury kills anything and not with circumstantial evidence.
    Again I appreciate what you have to say. I will not be visiting this article again.

  11. Thanks Tom! By the way, I didn’t approve the comment you wrote under a different name agreeing with yourself.