Supreme Court Holds EPA Must Undertake Additional Analyses for Life-Saving Clean Air Protections

“The Court has sided with the Dirty Delinquents — the small percentage of coal-fired plants that haven’t cleaned up — and against the majority that are already protecting our children from mercury and other toxic pollutants.” – EDF president Fred Krupp 

(Washington, D.C. – June 29, 2015) The U.S. Supreme Court today ruled that the U.S. Environmental Protection Agency (EPA) must undertake additional analyses for the Mercury and Air Toxics Standards – its life-saving clean air protections against some of the most dangerous types of air pollution, including mercury, arsenic and acid gases. Environmental Defense Fund (EDF) was a party to the case. 

In a 5-to-4 decision written by Justice Scalia, the Court reversed a U.S. court of appeals ruling and held that the U.S. Environmental Protection Agency (EPA) must consider major emitters’ compliance costs in making its threshold health-based determination that it is “appropriate and necessary” to move forward with emissions standards to protect Americans from these noxious emissions.

Justice Kagan wrote a sharp dissent, joined by Justices Ginsburg, Breyer and Sotomayor. 

“The Court has sided with the Dirty Delinquents — the small percentage of coal-fired plants that haven’t cleaned up — and against the majority that are already protecting our children from mercury and other toxic pollutants,” said EDF president Fred Krupp. “It’s critically important for our nation that these life-saving protections remain in place while EPA responds to the Court’s decision, and EDF will focus its efforts on ensuring these safeguards are intact.”

The Mercury and Air Toxics Standards set the first-ever national limits on hazardous air pollutants - like mercury, arsenic, chromium, and hydrochloric acid gas – from power plants. 

When fully implemented, the standards would:

• Prevent up to 11,000 premature deaths each year

• Prevent up to 4,700 heart attacks each year

• Prevent up to 130,000 asthma attacks each year

“Today’s unfortunate Supreme Court decision puts America’s communities and families at risk,” said Vickie Patton, EDF General Counsel. “While today’s decision is a setback, EPA has ample information to swiftly address the Court’s concerns. We must all keep diligently working to reduce the mercury and other toxic pollution in our air.”

Background 

Coal- and oil-fired power plants are by far the largest emitters of hazardous air pollutants like mercury, arsenic, chromium, and hydrochloric acid gas in the U.S. These pollutants 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.

The Mercury and Air Toxics Standards set the first-ever national limits on these pollutants for new and existing coal- and oil-fired plants. A large majority of American power plants are already in compliance with the standards. M.J. Bradley & Associates estimated that about 70 percent of the U.S. coal fleet had installed pollution controls to comply with the standards by the April 2015 deadline. 

While those 70 percent of U.S. coal plants are ready to comply with the standards, others – including those lagging behind — sued. They claimed that EPA should have considered costs in undertaking a threshold assessment to determine whether these contaminants present hazards to public health and therefore it is “appropriate and necessary” to move forward with emissions limits. 

In spite of their claim, reducing emissions of hazardous air pollutants has also proved much less expensive than industry initially projected. Across the country, power companies have significantly lowered their estimates of the costs of complying with the standards. And EPA estimates that overall benefits to society from the Mercury and Air Toxics Standards would outweigh costs by as much as 9-to-1. 

Before today, the Supreme Court’s precedent strongly suggested that EPA was not required, or even permitted, to consider cost in making a threshold decision whether to regulate – making it unsurprising that EPA relied on precedent and did not consider costs until later in the regulatory process.

The U.S. Court of Appeals for the D.C. Circuit ruled in favor of the Mercury and Air Toxics Standard in April of 2014, calling EPA’s conclusion regarding the costs “clearly permissible” under governing Supreme Court precedent. 

But today, a sharply divided Supreme Court reversed that decision. 

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