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
Add to Briefcase
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.

What We're Following See More »
WITH LIVE BLOGGING
Trump Deposition Video Is Online
18 hours ago
STAFF PICKS

The video of Donald Trump's deposition in his case against restaurateur Jeffrey Zakarian is now live. Slate's Jim Newell and Josh Voorhees are live-blogging it while they watch.

Source:
SOUND LEVEL AFFECTED
Debate Commission Admits Issues with Trump’s Mic
19 hours ago
THE LATEST

The Commission on Presidential Debates put out a statement today that gives credence to Donald Trump's claims that he had a bad microphone on Monday night. "Regarding the first debate, there were issues regarding Donald Trump's audio that affected the sound level in the debate hall," read the statement in its entirety.

Source:
TRUMP VS. CHEFS
Trump Deposition Video to Be Released
19 hours ago
THE LATEST

"A video of Donald Trump testifying under oath about his provocative rhetoric about Mexicans and other Latinos is set to go public" as soon as today. "Trump gave the testimony in June at a law office in Washington in connection with one of two lawsuits he filed last year after prominent chefs reacted to the controversy over his remarks by pulling out of plans to open restaurants at his new D.C. hotel. D.C. Superior Court Judge Brian Holeman said in an order issued Thursday evening that fears the testimony might show up in campaign commercials were no basis to keep the public from seeing the video."

Source:
A CANDIDATE TO BE ‘PROUD’ OF
Chicago Tribune Endorses Gary Johnson
23 hours ago
THE LATEST

No matter that his recall of foreign leaders leaves something to be desired, Gary Johnson is the choice of the Chicago Tribune's editorial board. The editors argue that Donald Trump couldn't do the job of president, while hitting Hillary Clinton for "her intent to greatly increase federal spending and taxation, and serious questions about honesty and trust." Which leaves them with Johnson. "Every American who casts a vote for him is standing for principles," they write, "and can be proud of that vote. Yes, proud of a candidate in 2016."

NEVER TRUMP
USA Today Weighs in on Presidential Race for First Time Ever
1 days ago
THE DETAILS

"By all means vote, just not for Donald Trump." That's the message from USA Today editors, who are making the first recommendation on a presidential race in the paper's 34-year history. It's not exactly an endorsement; they make clear that the editorial board "does not have a consensus for a Clinton endorsement." But they state flatly that Donald Trump is, by "unanimous consensus of the editorial board, unfit for the presidency."

Source:
×