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Supreme Court Blocks EPA Limits On Power Plant Mercury Emissions

Air Pollution: Justices say agency should have considered costs earlier in the regulatory process

by Glenn Hess
June 29, 2015

The Herbert A. Wagner Generating Station, a coal-fired facility located south of Baltimore on the Chesapeake Bay.
Credit: Cheryl Hogue/C&EN

In a 5-4 decision, the Supreme Court on Monday struck down the Environmental Protection Agency’s first-ever national standards for limiting emissions of mercury and other toxic air pollution from coal- and oil-fired power plants.

The Court ruled that EPA erred by not taking into account the costs placed on the electric utility industry in determining whether it was “necessary and appropriate” to regulate the pollutants under the Clean Air Act.

The decision sends the case back to the U.S. Court of Appeals for the District of Columbia Circuit, which will instruct EPA to reconsider its rule. Meanwhile, the 2012 regulation remains in effect.

Federal agencies have “long treated cost as a centrally relevant factor when deciding whether to regulate,” Justice Antonin Scalia wrote on behalf of the Court in the majority opinion.

Although agencies have some leeway to use their expertise to interpret laws, Scalia said EPA “strayed well beyond the bounds of reasonable interpretation in concluding that cost is not a factor relevant to the appropriateness of regulating power plants.” Scalia was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito.

EPA said it considered costs at a later stage of the process when it crafted the emission standards. It pegged those costs at about $9.6 billion per year.

But the agency argued that a provision of the federal law required it to initially decide whether there was a need to protect the public from utility emissions. EPA eventually concluded that the public health benefits, which it estimated at $37 billion to $90 billion in 2016 alone, far outweighed the costs.

The standards would have applied to roughly 600 plants, cutting mercury pollution up to 90% and preventing an estimated 11,000 deaths each year, according to EPA.

Justice Elena Kagan said EPA appropriately considered costs. “Over more than a decade, EPA took costs into account at multiple stages and through multiple means as it set emissions limits for power plants,” Kagan wrote in a dissenting opinion joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.

Environmental activists expressed disappointment with the ruling. “The Court’s decision to let polluters off the hook is a huge setback for our kids’ health,” says Anna Aurilio, director of Environment America’s Washington, D.C., office.

However, the National Mining Association, a critic of EPA’s regulation, called the court’s ruling a “vindication of common sense that is missing in much of the Administration’s regulatory actions.”



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