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
Jason Plautz
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Jason Plautz
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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