Obama’s EPA Notches Big Win in Court on Power-Plant Rule

NEW EAGLE, PA - SEPTEMBER 24: A plume of exhaust extends from the Mitchell Power Station, a coal-fired power plant built along the Monongahela River, 20 miles southwest of Pittsburgh, on September 24, 2013 in New Eagle, Pennsylvania. The plant, owned by FirstEnergy, will be one of two plants in the region to be shut down, affecting 380 employees. The Evironmental Protection Agency (EPA) and the Obama administration have been taking major steps to get coal-fired power plants into compliance with clean air regulations. 
National Journal
April 15, 2014, 8:46 a.m.

A federal Appeals Court upheld one of the Environmental Protection Agency’s landmark first-term rules Tuesday, saying the agency was right to regulate mercury, arsenic, and other pollutants from coal-fired power plants.

The U.S. Court of Appeals for the District of Columbia Circuit upheld the agency’s Mercury and Air Toxics standards against industry challenges, which said that EPA had relied on a flawed review process in formulating the rules.

But some questions about the rule may still dog the agency, as a dissenting opinion from Judge Brett Kavanaugh hinged on whether EPA should have considered the cost ahead of time. That’s something EPA opponents have long sought from the agency, although it is not required under the Clean Air Act.

The MATS rule, issued in December 2011, was the first time the agency had sought limits on pollutants — including mercury, arsenic, and other toxics — from coal- and oil-fired power plants. It was one of the landmark regulations in the administration’s first term and has been among the tent poles of what opponents have deemed a “war on coal.”

Industry groups led by the White Stallion Energy Center had challenged the rule, saying EPA followed a flawed review process that had not done enough to prove that the pollutants in question posed a risk to human health. The industry groups also argued that they didn’t have the proper time to comment and that EPA didn’t take into account the cost of the expensive pollution controls and other measures that would be required.

The rules are projected to cost $9.6 billion a year and have spurred coal-plant retirements across the country.

EPA deemed today’s win a “victory for public health and the environment” in a statement. The standards were projected to prevent up to 11,000 premature deaths and offer $90 billion in health benefits per year. Environmental groups, including the Environmental Defense Fund, joined EPA in the case.

It’s a big win for the agency, which has become no stranger to seeing its rules big and small face industry challenges. MATS was one of the biggest of the first term, along with the Cross-State Air Pollution Rule regulating pollution that drifts across state lines, which is currently before the Supreme Court. The upcoming rules limiting greenhouse gases from power plants are also expected to see a court challenge, so today’s ruling could offer a preview.

The MATS challenge roped in several suits that covered a wide scope of aspects of the rule, but the Court upheld the overall rule. However, Kavanaugh’s dissent over part of the ruling could offer a boost for challengers if the rule goes to the Supreme Court.

He argued, essentially, that EPA should have to consider the cost of meeting its standards before proposing them. EPA and green groups have said that’s not required under the Clean Air Act, and the majority opinion states that the agency must evaluate and consider only the public health benefits to determine whether the rules are “appropriate and necessary.”

The cost argument has long been a sticking point for EPA’s opponents, who say that the rules require costly emission controls that are putting the coal industry out of work.

Ann Weeks, a senior counsel with Clean Air Task Force, said there was a possibility that industry groups could latch onto the dissent for future challenges but that the overall ruling was a clear win for the agency.

The rule “was uniformly upheld, every last bit of it,” Weeks said. “As a legal matter, I think it’s a very strong and good opinion. For public health “¦ this is one of the biggest wins.”

“Now we have to get on to the work of actually implementing the rules,” she added.

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