Supreme Court Reviews EPA’s Power Plant Mercury Rule; Decision Due in June

The U.S. Supreme Court heard oral arguments this week in a challenge to the U.S. Environmental Protection Agency’s (EPA) consideration of cost impacts when developing the Mercury and Air Toxics Standard, (MATS) which are set to go into effect next month. At issue in the case is whether the Clean Air Act requires the EPA to consider costs in addition to health and environmental impacts when determining whether (not just how) to regulate hazardous air pollutants emitted by power plants.

The MATS rule, finalized in December 2011, requires coal-burning power plants to reduce emissions of toxic pollutants by installing control technologies. The EPA estimates the rule would cost industry about $9.6 billion a year but have the benefits of cutting coal and oil emissions by 90 percent and generating $37 billion in savings through “co-benefits.”

The U.S. Court of Appeals for the District of Columbia held that it is in EPA’s discretion whether to consider costs when deciding whether it is “appropriate and necessary” to regulate hazardous air pollutants emitted by power plants. During Wednesday’s Supreme Court oral argument, Justice Ruth Bader Ginsburg agreed, asserting that Congress instructed the EPA to use its expertise to decide what was appropriate and did not mandate consideration of costs.

Forbes reports that Justice Antonin Scalia repeatedly attacked EPA’s interpretation. He asserted, “I would think it’s classic arbitrary and capricious agency action for an agency to command something that is outrageously expensive and in which the expense vastly exceeds whatever public benefit can be achieved.”

The Supreme Court’s final decision is expected by the end of June (subscription).

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