In the wake of some truly momentous Supreme Court decisions regarding the Affordable Care Act and marriage equality, a small battle was lost for public health when the Supreme Court decided to reject the EPA’s regulation of hazardous air pollutants, including mercury. These regulations were enacted in 2012 under the Clean Air Act and have significant implications for coal-fired power plants. Following the June 29 ruling, industry groups and congressional opponents of the regulation claimed significant victory, freeing power plants from costly regulation. While it may appear as such on the surface, a careful reading of the decision implies that this will be but a small bump in the road for the EPA’s effort to protect Americans from the toxic effects of mercury and other hazardous air pollutants. The decision is also unlikely to have any effect on the more ambitious efforts to regulate other pollutants and greenhouse gas emissions that are expected to be released later this year.
When the EPA made the initial decision to regulate emissions of hazardous air pollutants, it did not take into account the costs that would be imposed on industry. Like other regulations, the exact emission limits were not established until later on in the implementation and it was not until the establishment of these exact limits that the EPA considered the full costs of the regulation. This is essentially what the ruling was concerned with. Justice Scalia, representing the majority, deemed that it was unreasonable for the EPA to fail consider the costs before making the initial decision to regulate emissions as opposed to later on in the process. Luckily, for citizens concerned for their future health, the rejection will not eliminate the important regulations on hazardous emissions. Instead, implementation of the regulation is likely to continue while the standards are sent back to the D.C. Circuit Court where the EPA will be forced to reassess the costs and benefits of the program. Since the standards were enacted back in 2012, most power plants have actually already established compliance under the regulation.
Public health will likely not be threatened with the loss of important protections from hazardous air pollutants. The EPA determined that these Mercury Air Toxics standards would prevent 11,000 premature deaths, 4,700 heart attacks, and 130,000 asthma attacks each year. While the EPA did not assess the costs and benefits when proposing the standards, they were assessed later on and show that the overall benefits far outweigh the costs felt by industry. Because power plants would be forced to install methods to control mercury emissions that simultaneously reduce emissions of sulfur dioxide, particulate matter and other pollutants, these co-benefits could result in almost $90 billion per year in savings. This figure compares to the estimated costs of compliance of $9.6 billion. Because these benefits vastly outweigh costs, the regulations are likely to remain in place.
It is also important to note that this recent Supreme Court decision will have no impact on President Obama’s Clean Power Plan that is expected to be finalized by the end of the summer. This plan will seek to limit greenhouse gas emissions under the Clean Air Act. As EPA Administrator Gina McCarthy stated, “making a connection between the Mercury Air Toxics standards and the Clean Power Plan is comparing apples to oranges,” and went on to say in reference to the Clean Power Plan, “last week’s ruling will not affect our efforts.”