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States seek to block mercury pollution rule

Twenty states have asked the Supreme Court to order federal officials to stop enforcing a four-year-old rule — temporarily nullified by the Court last June — that requires electricity-generating power plants to install technology to curb pollution of the air with mercury and other harmful materials.  The states plan a formal appeal to the Court to challenge the Environmental Protection Agency’s authority to impose the rule until it satisfies the Justices’ June decision.  EPA has been told to answer the new challenge by 4 p.m. next Wednesday.

In the new application, Michigan v. EPA (15A886), the protesting states contended that EPA now has no authority for its rule, and won’t have until it completes a new review of how much it would cost the generating industry to meet the new pollution control limits.  In the Court’s five-to-four decision in the case carrying the same title as the new application, the majority ruled that EPA cannot even begin to regulate power plant pollution until it has taken the costs of compliance into account.  EPA lost on its argument that it did not need to calculate costs until it imposed the rule, plant by plant, in the future.

EPA has told the U.S. Court of Appeals for the District of Columbia Circuit that it is aiming to complete the cost study by April 15, if possible.  It was that court which decided in December, after the case was returned to it by the Supreme Court, that the so-called “mercury rule” need not be put on hold while EPA works on the cost study and republishes the rule with that taken into account.  The D.C. Circuit noted EPA’s plan to try to finish by mid-April.  Earlier, the D.C. Circuit had upheld the rule as issued in 2012, but that was overturned by the Justices.

EPA, after concluding that power plants were the nation’s main source of the severely dangerous emission of mercury, in 2012 issued its rule to control that pollution as well as other chemicals rising from the plants’ smokestacks.   It estimated that the controls would go far to reduce the health hazards, particularly to children and pregnant women, of the mercury emissions.

The rule has continued in effect during the prolonged court challenges by states and the power and coal industries, leading up to last Term’s Supreme Court decision.  Because federal law gives EPA the duty to consider whether regulation of power plants was “appropriate and necessary,” the Court majority declared, the agency must consider costs of compliance, and that must come before any regulatory regime begins.

After the case got back to the D.C. Circuit, it asked everyone involved to propose the next steps needed to carry out the Supreme Court decision.  All of the challengers contended that the rule should be blocked — and thus current enforcement of it must stop immediately — until EPA has demonstrated in a final way that it has considered costs, because it has no authority to regulate the plants without having done that.

EPA, however, urged the Circuit Court to allow the mercury rule to remain in effect during the cost inquiry.  It said it had already compiled a great deal of cost information in the process of writing the rule, so it would not require a major effort to gather what more is necessary, and draw its conclusions about the cost impact.  The agency also contended that the rule is so critical to protecting public health and safety from the plants’ air pollution that it should remain in effect in the meantime.  The D.C. Circuit sided with EPA.

In taking their objection to the rule back to the Supreme Court on Wednesday, the twenty states argued that power plants have already had to spend billions of dollars as part of the required effort to comply with the rule.   They specifically asked the Court to block the rule’s further enforcement until either the EPA finishes a valid finding that, taking costs into account, regulation of the power plants is “appropriate and necessary,” or until the Court completes review of the coming petition the states are now preparing to file.

The application said the states were seeking a delay of the rule now, because they feared that, if EPA completes the study, it will then argue that the dispute over the rule has become legally “moot,” and there would then be no way for the challengers to test the final, costs-included rule for its legality under the Clean Air Act.

The application was filed with Chief Justice John G. Roberts, Jr.., who handles emergency legal matters that reach the Court from Washington, D.C.  Roberts has the option of acting on his own, or sharing the matter with his colleagues.






Recommended Citation: Lyle Denniston, States seek to block mercury pollution rule, SCOTUSblog (Feb. 26, 2016, 12:22 AM),