EPA doubles down on mercury rule; more litigation likely

U.S. EPA today stood by its plan to cut power plant mercury emissions, reaffirming an earlier conclusion that it made the right decision under the Clean Air Act to regulate releases of the toxic metal and other hazardous air pollutants.

That determination "is particularly well-founded in light of the significant health risks toxic air pollution pose to the American public," the agency said in a statement this morning, adding that the public benefits from the Mercury and Air Toxics Standards (MATS) "far outweigh the costs."

The final version of the "supplemental finding" announced today comes in response to last June's Supreme Court ruling, which found that EPA failed to adequately consider compliance costs when crafting MATS, issued in 2012 and ranking among the most expensive in the agency's history.

In the finding, signed yesterday by EPA Administrator Gina McCarthy and now awaiting publication in the Federal Register, the agency wrote that "a consideration of cost does not cause us to change our determination that regulation of hazardous air pollutants emissions from coal- and oil-fired" power plants "is appropriate and necessary."

Among the factors underlying its decision, EPA stressed that the regulations' estimated annual benefits of $37 billion to $90 billion far outstrip the projected $9.6 billion compliance cost and that the shift by power producers toward natural gas and renewable energy sources has already cut emissions of mercury and other toxic releases associated with coal-fired plants.


Environmental groups involved in the litigation over the standards quickly hailed the determination, which does not appear to differ significantly from the draft that EPA officials had unveiled in November.

The agency had committed to addressing the high court's concerns by the end of this week, which marks the compliance date for power plants that sought a one-year extension to the rule.

"EPA was right on time, and exactly right with the result here," Ann Weeks, legal director of the Massachusetts-based Clean Air Task Force, wrote in an email. "By any metric, whether it's an assessment of the ratio of the costs of the rule to the historic annual revenues in the industry, or the effect on electricity prices, the decision to regulate is reasonable."

The finding confirms that the MATS regulations "are a vital and highly cost-effective investment in cleaner air and a safer environment for our communities," Graham McCahan, a senior attorney for the Environmental Defense Fund, said in a statement.

The regulations' projected health benefits "are based on the strongest possible science," he added. "EPA's analyses also show these protections are clearly cost-effective."

A spokesman for the Edison Electric Institute, which represents investor-owned utilities, had no immediate comment.

Court fight not over

The updated finding won't put an end to the continuing court fights over the rule, which has helped push dozens of coal-fired power plants to shut down.

The Supreme Court is considering a petition from 20 states led by Michigan that argue the rule should have been scrapped entirely and that a lower court's decision to keep it on the books was illegal.

Last month, the states argued that the move to keep the rule in place "effectively thwarts" the Supreme Court's decision rejecting the mercury rule.

Even if EPA issued its new finding to bring it in line with the Supreme Court's 2015 decision, "EPA never had authority to impose it in the first place," the states wrote (Greenwire, March 18).

The Obama administration's response to the states' Supreme Court petition is due May 6. The justices will then decide whether to hear the states' appeal. They could dismiss the request in a short order.

Supreme Court Chief Justice John Roberts previously rejected a bid to freeze the rule while states made their case for the court to scrap it altogether (Greenwire, March 3).

Those same challengers may now attack the rule on another front by suing EPA over its new finding. Last year's high court ruling also reignited a debate over the agency's use of health "co-benefits" in justifying the price tag for meeting Clean Air Act regulations.

While industry and states fighting the mercury rule had raised that issue in the litigation, the high court didn't rule on it, although the 5-4 opinion said that MATS's "quantifiable benefits" were worth $4 million to $6 million per year.

The bulk of the remaining monetary benefits would come largely from expected reductions in particulate matter, a pollutant that is not a direct target of the mercury rule.

Twitter: @SeanatGreenwireEmail:

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