Bid for mercury stay tests justices’ zeal for curbing EPA

By Robin Bravender | 02/26/2016 01:19 PM EST

When the Supreme Court took the unusual step this month to freeze U.S. EPA’s Clean Power Plan, many wondered whether it would be bombarded with bids to block environmental rules.

When the Supreme Court took the unusual step this month to freeze U.S. EPA’s Clean Power Plan, many wondered whether it would be bombarded with bids to block environmental rules.

Sure enough, just two weeks later, another request has landed at the court.

This time, a 20-state coalition is asking Chief Justice John Roberts to halt another major rule meant to crack down on power plants’ mercury emissions. The request is unusual, given that a lower court just refused to freeze that regulation, but foes of the Obama administration appear to be testing the justices’ willingness to grant such requests.


"Everyone’s closely watching this," said Tom Lorenzen, a former Justice Department attorney who represents industry clients at Crowell & Moring. "Obviously, anything the Supreme Court does is going to be read closely and viewed as tea leaves for the reading."

Agreeing to block the rule against the wishes of a federal appeals court and the Obama administration would send a signal that the court is willing to step in to smack down environmental regulations, and could open the floodgates for even more requests to intervene. But a rejection could suggest that the court’s unprecedented decision to stay the Clean Power Plan was unique and that the justices won’t be broadly willing to meddle with other rules.

On Tuesday, Michigan’s attorney general, Bill Schuette (R), led the group of states urging the high court to step in and block EPA’s Mercury and Air Toxics Standards (MATS) (E&E Daily, Feb. 24).

The Supreme Court ruled 5-4 last year that the mercury regulation was illegal because EPA hadn’t properly considered costs, and sent the case back to a federal appeals court for further action. But the justices didn’t obliterate the rule then, and the U.S. Court of Appeals for the District of Columbia Circuit later agreed to keep the rule in place while EPA tweaked its rule to justify the costs (Greenwire, June 29, 2015).

After the Clean Power Plan stay, the states saw an opening. "This request closely follows behind the Court’s decision this month to stay President Obama and the EPA’s Clean Power Plan, another example of EPA legal overreach," Schuette said in a statement earlier this week.

A stay is "even more warranted here, after this Court has reviewed EPA’s finding authorizing the Mercury Rule and has found it to be unlawful and in excess of EPA’s authority under that same Act," the states said.

The states’ lawyers contend that a stay of the mercury rule is needed to preserve the Supreme Court’s authority to toss out the rule after EPA tweaks its cost considerations, which the agency has said it plans to do by mid-April. The states asked the justices to halt the rule until EPA issues that new cost finding or until the court resolves a future request to quash the rule entirely.

Roberts — who handles stay applications for D.C. Circuit actions — asked for the Obama administration to respond to the states’ request by next Wednesday. Roberts could have rejected the petition without asking for EPA’s input, so the fact that he has asked for a response could signal that he’s receptive to weighing the states’ arguments.

But Scott Fulton, a former EPA general counsel and president of the Environmental Law Institute, said he doesn’t "read anything particular" into Roberts’ request for an agency response. "It simply means that they’re trying to make sure that their process is a fair one."

Roberts’ move

After EPA makes its case to the court, Roberts could do one of two things: act on the request alone or confer with his colleagues, which he did in the case of the Clean Power Plan. The 5-4 decision to stay the Clean Power Plan was opposed by the court’s four liberals.

Should Roberts act alone to stay the rule, the administration could appeal to the other justices, but it’s unclear whether the four liberals could find a fifth vote to override Roberts’ decision. If Roberts refers the application to the full court, however, it could split 4-4 along ideological lines, since Justice Antonin Scalia’s death has left the court with just eight members.

Roberts acting on his own "would be very unusual, given his interest in the institution of the court and its reputation," Lorenzen said. If the full court makes the decision, "I don’t know who that five-justice majority would be at this point without Scalia," he added, noting that securing a stay here is "really an uphill battle."

There are some big distinctions between the lawsuits over the Clean Power Plan and the mercury rule.

"There are a lot of unique factors involved in the MATS litigation," said Bob Sussman, a former senior EPA official in the Obama and Clinton administrations. Notably, he said, "the Supreme Court has in fact issued a decision [in the mercury case], whereas they’re a long way off from deciding the merits of the Clean Power Plan, so there are critical differences here."

Fulton said the mercury case is unusual, and a decision on a stay could be viewed as the "court really trying to effectuate or clarify its earlier ruling." It could send a "very narrow message" and shouldn’t be viewed as "a harbinger of things to come."

However, Fulton said, "unless and until the court denies one of these in a fairly decisive way, it at a minimum ensures that we’re going to see these kinds of stay requests coming forward."

As it did with its Clean Power Plan decision, the court could issue an opaque short order giving little information about why it acted the way it did. Alternatively, the justices could use the opportunity to offer more guidance about future requests.

"It’ll be interesting to see whether the court in addressing this expresses itself in some way," said Fulton. "They could try to stem the flow, and there may be some value to doing that if they are not interested in opening up a spigot."

Greenwire‘s Bravender discusses mercury stay request on E&ETV’s The Cutting Edge

All eyes are on the Supreme Court this week as President Obama weighs options for his pick to replace the late Justice Antonin Scalia. As the debate over a nominee continues, SCOTUS is considering several major energy and environment cases. On today’s The Cutting Edge, Greenwire reporter Robin Bravender discusses the future of these cases, including the request to stay EPA’s mercury and air toxics rule.

Click here to watch E&ETV’s The Cutting Edge.