EDF, Broad Coalition Ask Supreme Court to Leave Life-Saving Mercury Standards in Place

A coalition of states, cities, medical associations, civil rights organizations and environmental groups, including EDF, asked the Supreme Court today to leave the life-saving Mercury and Air Toxics Standards in place while the U.S. Environmental Protection Agency (EPA) completes its supplemental rulemaking – a process that will take only a few weeks.

EPA issued a proposed supplemental finding, considering costs through a range of different assessments, that it is “appropriate and necessary” to establish emissions standards for these toxic contaminants, and has indicated that its proposed supplemental finding will be completed by mid-April. Despite the fact that EPA will complete its finding in just a few weeks, a group of states led by the Attorney General of Michigan asked the Supreme Court for an emergency stay of the Mercury and Air Toxics Standards last week. 

In a brief filed today, EDF and 15 states, the District of Columbia, the cities of New York, Chicago and Baltimore, the NAACP, the American Academy of Pediatrics, the American Lung Association, the American Nurses Association, and many others vigorously opposed the stay application, stating:

“[U]nrebutted evidence showed that vacating the rule would result in the release of large quantities of extremely toxic pollution — including mercury … Congress listed these pollutants under section 7412, the Clean Air Act’s ‘most-wanted’ list of contaminants, because those pollutants are extremely dangerous to humans. They cause serious, debilitating public health harms, including increased risk of permanent neurological damage (especially to developing fetuses and children) from mercury exposure … No useful purpose could be served by Applicants’ requested short-term blocking of the Rule, which would harm public health, create difficulties for states that depend upon the Rule, and introduce instability in the power industry.” (Brief at pages 17/18 and 7)

The request for an emergency stay follows on the heels of the Supreme Court’s 5-to-4 decision to grant a highly unusual emergency stay of the Clean Power Plan. It also follows news of a disastrous health crisis in Michigan because of lead-contaminated drinking water in Flint. Both lead and mercury are highly toxic and linked to brain damage in children.

“It is time to end this damaging litigation and to protect our children from the poisons in our air and water. The Mercury and Air Toxics Standards are safeguarding millions of American children from poisons such as mercury, arsenic and acid gases,” said Vickie Patton, general counsel for EDF, which is a party to the case. “While the children of Flint were being poisoned by lead in drinking water, the Michigan Attorney General was using hard-earned public resources to try to block our nation’s first-ever and long overdue limits on the air toxics discharged by coal plants.” 

The Mercury and Air Toxics Standards set the first-ever national limits on hazardous air pollutants from power plants, including mercury, arsenic, chromium, and hydrochloric acid gas. Power plants are our nation’s single largest source of those pollutants, which are dangerous to human health even in small doses – mercury causes brain damage in children, metal toxics like chromium and nickel cause cancer, and acid gases cause respiratory problems.

Last June, a sharply divided Supreme Court remanded the Mercury and Air Toxics Standards to the D.C. Circuit Court. The Supreme Court ruled that the EPA must consider the costs of regulation in making its threshold determination whether it is “appropriate and necessary” to regulate hazardous air pollution from power plants.

The D.C. Circuit Court unanimously rejected requests for a stay in December.

EPA issued a proposed supplemental finding reaffirming the enormous health benefits of reducing mercury and other toxic air pollution in November. (The agency had already found that the public health benefits of the standards were valued at up to $90 billion annually, but that finding was made later in the process of creating the standards.) EPA has said the supplemental finding will be finished by mid-April.

EPA had also found that the value of the benefits far exceeded the compliance costs – and since then, power companies have been able to comply with the Mercury and Air Toxics Standards at a fraction of EPA’s original cost estimates.

You can find more about the history of the case and all the legal briefs on EDF’s website.