Embattled mercury rule likely to withstand court assault

By Robin Bravender | 12/04/2015 01:09 PM EST

U.S. EPA’s landmark air standards for mercury appear likely to survive an effort by industry and states to kill the rules in court.

U.S. EPA’s landmark air standards for mercury appear likely to survive an effort by industry and states to kill the rules in court.

A panel of federal judges this morning seemed reluctant to vacate EPA’s rules to slash mercury and other hazardous air pollutants from power plants after the Supreme Court sent the standards back to the U.S. Court of Appeals for the District of Columbia Circuit. The high court ruled that EPA failed to properly consider costs before issuing the standards, and opponents of the regulation urged the D.C. Circuit to toss out the rules.

But the same three-judge panel that upheld those EPA rules in 2014 hinted today that it’s inclined to keep the standards alive while allowing EPA to address the problems flagged in the Supreme Court’s ruling.


Oral arguments this morning centered on whether the rules should be vacated, and the judges focused questioning on the practical consequences of gutting the rules. EPA officials have indicated that they believe they can tweak the rule quickly to address costs and comply with the Supreme Court’s ruling, and that the agency believes it is likely to reaffirm its finding.

The agency has committed to fully addressing the high court’s concerns by April 15, and EPA issued a proposed finding last month concluding that the benefits of its mercury standards justified the costs of the rule.

Judge Brett Kavanaugh, a Republican appointee who dissented in the appeals court’s divided ruling last year, questioned what practical implications vacating EPA’s rules would have, given that the agency has already indicated it will come to the same conclusion.

Michigan Solicitor General Aaron Lindstrom, the attorney representing a coalition of states and industries asking to vacate the rule, warned that compliance costs will be "significant" during the time that EPA tweaks its rule. "This has been imposed unlawfully," he told the judges.

Chief Judge Merrick Garland, a Democratic appointee, told the challengers that "in four months, you may be back under the rule again." He added, "We can’t help you with what happened in between." Garland apologized for issuing the decision to uphold the rule that was later rebuffed by the high court.

The judges also noted that their court had previously sent flawed rules back to agencies without gutting the rules completely.

Kavanaugh noted that the Supreme Court did not say EPA didn’t have the authority to issue the rule in the first place. Rather, he said, the high court found that EPA didn’t have the authority to do what it did without first considering costs.

Kavanaugh dissented from Garland and Judge Judith Rogers — another Democratic appointee — in the 2014 decision to uphold the rule, based on EPA’s conclusions regarding costs. Kavanaugh wrote that consideration of costs is "common sense and sound government practice." He added that consideration of costs "is no trivial matter" (Greenwire, April 15, 2014).

Stephanie Talbert, the attorney representing EPA in court today, stressed that the agency "is on track" to meet its deadline to factor in costs. She also argued that tossing out the mercury rule would have harmful public health and environmental consequences.

The mercury rules issued by EPA in December 2011 require coal-burning power plants to reduce emissions of mercury, lead, arsenic and other hazardous air pollutants. The agency said those standards would prevent 11,000 premature deaths a year and yield up to $90 billion in health benefits.