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Once again to SCOTUS for Texas and the EPA

Plus ca change, and all that.

Texas again went head-to-head with the Environmental Protection Agency before the U.S. Supreme Court on Wednesday, this time challenging federal limits on the emission of pollutants like mercury, acid gases and other toxic metals from power plants.

Joined by 20 other states, Texas is arguing that the EPA didn’t properly consider the $10 billion annual price tag of its regulations, which “threatens to drive a number of coal-fired electric utilities out of business.” The rules target more than 50 coal- and oil-fired power plants across Texas, and industry and labor groups are also challenging them.

The EPA counters that Congress never directed the agency to consider costs the way Texas and other states think it should have. And in any case, the agency argues, the benefits far outweigh the costs. The agency asserts that the rule prevents up to 11,000 premature deaths per year. Mercury, a highly toxic chemical that can build up in the human body, is linked to brain abnormalities and developmental disorders.

“The [mercury] rule will importantly reduce serious hazards to the public,” the American Academy of Pediatrics wrote in a legal brief supporting the EPA. “Those hazards … are particularly acute for vulnerable groups, including children who can suffer debilitating, lifelong effects” from toxic pollution.

[…]

At the heart of the case is whether deeming regulations “appropriate and necessary” should include an aggressive consideration of costs early in the process. The plaintiffs say yes; the defendants say no. The D.C. Circuit Court agreed with the defendants last year, pointing out that the courts have previously said the EPA doesn’t need to consider costs that way unless Congress directly tells it to.

If the high court disagrees, a key issue will be how the benefits of environmental regulations should be quantified. Right now, the EPA says the benefits of the mercury rule could total as much as $80 billion, which dwarfs the estimated $10 billion cost.

Opponents say the $80 billion figure is misleading. Only $4 billion to $6 billion of it comes directly from reducing mercury pollution, they argue; the rest is a “co-benefit.” That’s because removing mercury from the air also removes the particulate matter it’s often attached to — leading to increased health benefits.

During oral arguments on the case Wednesday, Chief Justice John Roberts said that type of co-benefit calculation “raises the red flag” and looks like the EPA is trying to reduce particulate pollution through the back door. That would be an “end-run” around a separate part of the Clean Air Act that the agency must follow for that type of pollution, he said.

“It’s not an end-run, and it’s not a boot strap,” responded U.S. Solicitor General Donald Verrilli, who was defending the EPA. Calculating co-benefits is “a perfectly appropriate way to deal with getting at metals and other pollutants that would be hard to get at directly,” he said.

I’m sure there’s some subtle legal reason why removing the particulates attached to the mercury shouldn’t count, but I’m too simple a soul to see the logic of it. That won’t be an issue if SCOTUS agrees with the DC Circuit about the bigger question of whether or not the EPA had to consider costs in the first place. I’m sure you’ll be shocked to hear that Anthony Kennedy is the swing vote. Let’s hope we get the good Justice Kennedy this time. The good news is that Texas has an abysmal won-lost record on matters like these. But there’s always a first time, so let’s not get too confident.

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