The Environmental Protection Agency took home a sweeping victory Tuesday when an appeals court upheld the agency’s pollution limits for mercury and air toxics from power plants.
The three-judge panel of the U.S. Court of Appeals for the D.C. Circuit upheld EPA’s rule,known as MATS, denying challenges from states, utilities and industry groups that argued the rules came out of a flawed regulatory process and illegally imposed exorbitant costs on power producers that will force dozens of power plants to shut down.
Tuesday’s decision, which also shot down arguments from environmental groups that it was too weak, was the latest chapter in a saga that began during the Clinton administration. Its strict pollution control requirements will push many of the nation’s oldest and dirtiest coal-fired power plants into retirement when it takes effect in 2015.
The court upheld EPA’s decision to take into account environmental damage from the pollutants, rather than just health-based harms, when it decided to regulate. And the agency based its decision on the impacts of hazardous pollution broadly, rather than just emissions from power plants — a “commonsense approach,” wrote Judge Judith Rogers, to “statutory ambiguity” that was within the bounds of EPA’s discretion.
EPA spokeswoman Liz Purchia lauded the ruling, which will keep in place a rule the agency hassaid will eliminate 90 percent of coal-fired power plants’ mercury pollution, 88 percent of their acid gas emissions and 41 percent of sulfur dioxide emissions.
The standards “will save thousands of lives each year, prevent heart and asthma attacks, while slashing emissions of the neurotoxin mercury, which can impair children’s ability to learn,” Purchia said.
All three judges backed EPA on most of the issues raised by the case, although Judge Brett Kavanaugh wrote a dissenting opinion on when EPA should have considered the costs of the rule.
The coal industry and its supporters have charged EPA with a regulatory assault on the power source, which has long been the primary power source for much of the country.
MATS “imposes enormous costs upon households and businesses but provides little additional environmental benefit. The court recognized the EPA has the authority to consider costs but upheld EPA’s decision to ignore them,” National Mining Association President Hal Quinn said Tuesday, lamenting the court loss.
At the start of 2012, coal made up nearly a third of the U.S. power generating capacity, or about 323 gigawatts, according to the research firm SNL Energy. Coal-fired power plant shutdowns in recent years are approaching 20 gigawatts, according to the Energy Information Administration and are likely to reach 60 gigawatts by the end of the decade.
Environmental groups, who had sought but failed to win even stricter regulations from the court, cheered Tuesday’s ruling.
The ruling “upholds significant health protections for women, children, those who live near existing coal-fired power plants, and the environment due to air toxic emissions like mercury, arsenic, chromium and other metals, and acid gases,” said Ann Weeks of Clean Air Task Force, which has represented 10 regional and local environmental organizations in the case since 2005.
“We are very pleased with this ruling, and we look forward to working with the agency to realize these health and environmental protections, as the existing source standards are implemented at power plants in the coming years,” she added.
The MATS regulation has taken a twisted route, depending on the stance of the administration in power.
In December 2000, the waning days of the Clinton administration, EPA issued a determination that it was “appropriate and necessary” to regulate hazardous air pollutants from coal- and oil-fired power plants under Section 112 of the Clean Air Act. That included not only mercury but also arsenic, chromium, nickel, cadmium, dioxins, hydrogen chloride and hydrogen fluoride.
The George W. Bush administration reversed that decision in 2005, but that effort was blocked by a court that ruled the move was unlawful.
In its ruling Tuesday, the appeals court said that EPA’s review of the science behind the regulation was sufficient and legal.
“EPA determined that mercury emissions posed a significant threat to public health based on an analysis of women of child-bearing age who consumed large amounts of freshwater fish,” Kavanaugh said.
The court also denied one of industry’s main complaints about the rule: that EPA cherry-picked the best data to deliver a “franken-MACT,” or “maximum achievable control technology” requirement. The law requires EPA to set a “floor” — the minimum emissions control — based on the best 12 percent of facilities. While approximately 1,100 electric power plants must follow the rule, EPA used data from 388 best-performing sources.
But the evidence doesn’t show that EPA — intentionally or not — used skewed data to set the MACT requirement, the ruling said. EPA had to take into account that some of the best power plants for mercury controls were some of the worst for controlling particulate matter, and vice versa, the ruling said. “In short, EPA’s data-collection process was reasonable, even if it may not have resulted in a perfect dataset,” the opinion said.
And the rule didn’t distinguish between “area sources” and “major sources,” or between some types of generating units, as some in the energy industry had hoped. That, the court ruled, was also a reasonable decision by EPA.
The court also upheld agency decisions about how to regulate acid gases and chromium, despite questions about the health risks posed by the pollutants, and decisions to separate out some types of coal-fired power plants and not others.
The court shot down some environmentalists’ arguments against “averaging” of emissions that EPA allowed for monitoring of pollution, backing EPA’s desire to give power plants flexibility and disagreeing with arguments that it weakens the rule.
The main dispute between judges came regarding the agency’s decision on weighing the costs of regulating the pollutants. The lead opinion by Rogers, who was joined by Chief Judge Merrick Garland, backed EPA’s decision to consider costs during the regulatory impact analysis of the rule, rather than before deciding to regulate.
Kavanaugh disagreed, and he penned a dissent focused on that part of the case, saying that EPA’s failure to consider the costs before regulating “is no trivial matter.”
“The estimated cost of compliance with EPA’s Final Rule is approximately $9.6 billion per year, by EPA’s own calculation. … To put it in perspective, that amount would pay the annual health insurance premiums of about two million Americans. It would pay the annual salaries of about 200,000 members of the U.S. Military. It would cover the annual budget of the entire National Park Service three times over,” he wrote.
And the benefits are disputed, Kavanaugh wrote. The power industry argues that the rule costs nearly $1,500 for every $1 of health and environmental benefits, he said in his dissent. EPA, adding in the benefits from the reductions of fine particulate matter, estimated benefits of $37 billion to $90 billion.
Kavanaugh had said at oral arguments in December that it seemed “weird” not to consider the costs before deciding whether to issue regulations.
“What’s really going on in this case — let’s not sugarcoat it — is bankrupting part of the industry,” Kavanaugh said at the time. Nevertheless, he added, “that may be good. … The benefits may be worth the costs.”