Obama’s Air-Pollution Regulations on Trial

The smoke stacks at American Electric Power's (AEP) Mountaineer coal power plant in New Haven, West Virginia, October 30, 2009. In cooperation with AEP, the French company Alstom unveiled the world's largest carbon capture facility at a coal plant, so called 'clean coal,' which will store around 100,000 metric tonnes of carbon dioxide a year 2,1 kilometers (7,200 feet) underground.
National Journal
Ben Geman
Dec. 9, 2013, 4:48 p.m.

Ar­gu­ments be­fore the Su­preme Court and a lower court on Tues­day will put two pil­lars of Pres­id­ent Obama’s first-term air-qual­ity agenda on tri­al.

The Su­preme Court will hear ar­gu­ments over the En­vir­on­ment­al Pro­tec­tion Agency’s 2011 Cross-State Air Pol­lu­tion Rule. It re­quires states in the east­ern half of the U.S. to cut smog- and soot-form­ing pol­lu­tion from power plants that blows across state lines.

An ap­peals court knocked down the rule in 2012, but the EPA asked the high court to re­view the case.

Not far away, the U.S. Court of Ap­peals for the D.C. Cir­cuit will hear chal­lenges from in­dustry groups and sev­er­al states to a sep­ar­ate EPA rule that re­quires cuts in power-plant emis­sions of mer­cury and oth­er tox­ic com­pounds.

The stakes are high.

“I think that killer coal-fired power plants are lit­er­ally on tri­al,” said Frank O’Don­nell of the ad­vocacy group Clean Air Watch. “What’s at stake is the health of many mil­lions of Amer­ic­ans who for years have been sub­ject to dis­ease and sick­ness from coal-fired power plants.”

The twin events will fo­cus on de­tailed leg­al ques­tions, but the court cases are part of a much wider battle over en­ergy policy and coal.

The ar­gu­ments will help de­cide the fate of a White House en­vir­on­ment­al agenda that in­dustry groups and many Re­pub­lic­ans call overzeal­ous and eco­nom­ic­ally harm­ful, es­pe­cially in coal-pro­du­cing re­gions and areas heav­ily re­li­ant on coal for power.

“They have been much more ag­gress­ive than any pri­or ad­min­is­tra­tion in us­ing the Clean Air Act and in par­tic­u­lar us­ing the Clean Air Act to go after coal-fired power plants,” said Jef­frey Holmstead, now a part­ner at Bracewell & Gi­uliani, a firm that counts power com­pan­ies among its cli­ents.

Holmstead, who was EPA’s top air qual­ity of­fi­cial un­der Pres­id­ent George W. Bush, said the mer­cury and air-tox­ics rule be­fore the ap­peals court is the cost­li­est in EPA his­tory.

The agency es­tim­ates the reg­u­la­tions will have nearly $10 bil­lion in an­nu­al costs. However, EPA es­tim­ates that the health be­ne­fits of the rules far out­weigh the costs.

The groups at­tack­ing and de­fend­ing the rules in the courts mir­ror parties wa­ging in­tense polit­ic­al and lob­by­ing battles over the White House agenda — struggles that are in­tensi­fy­ing as EPA crafts sep­ar­ate second-term rules to curb car­bon emis­sions that af­fect cli­mate change.

Groups chal­len­ging the air-tox­ics stand­ards be­fore the ap­peals court in­clude util­it­ies with coal-fired plants, the Na­tion­al Min­ing As­so­ci­ation, and a num­ber of states in­clud­ing Texas.

At the Su­preme Court, mean­while, the EPA and its al­lies will ask the justices to breathe life in­to the cross-state rule that the D.C. Cir­cuit struck down last year. The ap­peals court, in a 2-1 de­cision, said the EPA took an overly ex­pans­ive view of its power to force emis­sion cuts un­der the Clean Air Act’s “good neigh­bor” pro­vi­sion. The pro­vi­sion en­ables the EPA to re­quire pol­lu­tion cuts in states that “con­trib­ute sig­ni­fic­antly” to the fail­ure to meet air qual­ity stand­ards in areas down­wind. But the judges said the EPA rule goes well bey­ond that threshold.

“EPA has used the good neigh­bor pro­vi­sion to im­pose massive emis­sions re­duc­tion re­quire­ments on up­wind States without re­gard to the lim­its im­posed by the stat­utory text,” the 2012 rul­ing stated.

The high court will also ex­plore wheth­er EPA ran rough­shod over states by re­quir­ing com­pli­ance with “fed­er­al im­ple­ment­a­tion plans” to meet the re­quire­ments without first giv­ing states the chance to make pol­lu­tion cuts.

EPA es­tim­ates that the Obama ad­min­is­tra­tion’s cross-state rule, when phased in, would pre­vent 34,000 pre­ma­ture deaths, 15,000 non­fatal heart at­tacks, 19,000 cases of acute bron­chit­is, and 400,000 cases of ag­grav­ated asthma an­nu­ally.

The 2012 ap­peals-court de­cision ordered EPA to con­tin­ue im­ple­ment­ing a less-strict Bush-era ver­sion of the rule.

Justice Samuel Alito has re­cused him­self in the Su­preme Court case.

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