SUPREME COURT

States launch another attack on EPA mercury rule

States want the Supreme Court to take another crack at U.S. EPA's rule to limit power plants' mercury emissions.

In the latest of a series of legal attacks on the Obama administration's Mercury and Air Toxics Standards, a 20-state coalition is asking the high court to toss the rule. Its argument: After the Supreme Court ruled last year that the mercury rule was illegal because EPA hadn't properly considered costs, a lower court decision to keep the rule on the books was also illegal.

"Despite the facts that both Congress and this Court have required EPA to consider costs before it may impose any regulation on power plants (including the Mercury and Air Toxics Standards Rule), and that EPA has not completed this step, the Rule remains in place," the coalition, led by Michigan Attorney General Bill Schuette (R), wrote in a petition asking the justices to hear the appeal.

Rule challengers scored a big win last year when the Supreme Court found the mercury rule illegal. The justices didn't vacate the regulation but sent it back to the U.S. Court of Appeals for the District of Columbia Circuit for further consideration. The D.C. Circuit agreed to keep the rule in place, letting EPA tweak the regulation to bring it in line with a Supreme Court ruling. The agency has said it plans to issue a new determination next month finding that the benefits of the mercury rule justified the costs.

The D.C. Circuit's decision to keep the rule in place "effectively thwarts" the Supreme Court's decision rejecting the mercury rule, the states wrote. "It is a fundamental principle of administrative law that agency actions taken without statutory authority must be vacated," they wrote.

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The same 20-state coalition last month asked Supreme Court Chief Justice John Roberts to freeze the mercury rule while the states prepared their petition asking the court to kill the rule. The request for intervention was seen as unusual, but the challengers were likely emboldened by the court's recent decision to freeze EPA's Clean Power Plan, a rule to limit power plants' greenhouse gas emissions.

Roberts quickly rejected the bid to stall the mercury rule (Greenwire, March 3).

The states waging war on the rule in court are Alabama, Alaska, Arizona, Arkansas, Idaho, Iowa, Kansas, Kentucky, Michigan, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, Texas, Utah, West Virginia and Wyoming.

Environmentalists supporting EPA's regulation say they don't expect the justices to agree to hear the challenge.

Earthjustice attorney James Pew said the request is unusual, given that "EPA has committed to getting its response to the Supreme Court's decision out next month." If the states are unhappy with EPA's final decision, he said, they can challenge it before the D.C. Circuit and could appeal again to the Supreme Court, if they choose to.

Pew disputed states' argument that the law requires the courts to vacate a rule found to go beyond an agency's authority. He pointed to language in the Clean Air Act that says, "The court may reverse such action found to be ... in excess of statutory jurisdiction [or] authority."

EPA has pointed to that same "may reverse" language in the fight over the rule, but the states told the Supreme Court that doesn't give judges discretion in this case. "If EPA is correct about what 'may' means, then courts have the discretion to leave in place even unconstitutional agency actions -- say, for example, an agency deciding whom to regulate based on the person's race or religion. That cannot have been Congress's intent," the states wrote.

It takes the votes of four justices for the court to agree to hear an appeal.

Click here to read the states' petition.

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