Legal & Regulatory

Twenty States Call on Supreme Court to Stay EPA Mercury Rule

Rallied by the Supreme Court’s unprecedented stay of the Environmental Protection Agency’s (EPA) Clean Power Plan, a coalition of 20 states has asked the high court to stay another disputed agency rule: the Mercury and Air Toxics Standards (MATS).

The states 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.

“Unless this court stays or enjoins further operation of the Mercury and Air Toxics rule, this court’s recent decision in Michigan v. EPA will be thwarted,” says the filing, as quoted in The Hill. “A stay or injunction is appropriate because this court has already held that the finding on which the rule rests in unlawful and beyond EPA’s statutory authority.”

“When the U.S. Supreme Court speaks, the federal government must listen,” Michigan Attorney General Bill Schuette said in a statement. “Last year, the U.S. Supreme Court ruled that the EPA must follow federal law and consider costs before implementing new regulations on job creators and American families.

“We are simply asking the court to enforce its ruling and require the EPA to follow the law like everyone else.”

On June 29, 2015, in Michigan v. EPA, the U.S. Supreme Court decided 5–4 that the EPA interpreted the Clean Air Act unreasonably when it deemed cost irrelevant to the statutory decision of whether regulating power plants was “appropriate and necessary.” In the high court’s majority opinion, Justice Antonin Scalia said that it was not appropriate for the EPA “to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.”

The Supreme Court, however, did not vacate the rule. Instead, it reversed an April 2014 judgment by the D.C. Circuit that upheld the EPA’s February 2012–finalized standards. The appeals court had said in that 2–1 decision that the agency is not required to take costs into account when it promulgates rules that are “appropriate and necessary” to address hazards to public health.

In response to the Supreme Court’s holding, the EPA said in a November 20, 2015, supplemental finding that it did conduct a benefit/cost analysis for the rule. Significantly, in that notice, the agency called for public comments on a proposal to declare that it would have reached the same conclusion if it had completed the analysis before making the “appropriate and necessary” finding rather than after it began the rule-making process.

On December 15, 2015, however, providing no explanation, the D.C. Circuit ordered in White Stallion Energy Center, LLC v. EPA (Case No. 12-1100) that the rule be remanded to EPA without vacatur of the final rule. That means the rule will remain in effect while the agency works on its cost finding, which is expected on or before April 15, 2016.

Sonal Patel, associate editor (@POWERmagazine, @sonalcpatel)

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