Mercury No More: Court Upholds EPA Air Toxics Rule

Photo: ©hicagoenergy, Creative Commons/Flickr

Breath easy. When it comes to this essential clean air rule, the coal industry’s arguments are even worse than its timing

The U.S. Environmental Protection Agency — but also public health advocates and anyone who likes to eat fish or breath clean air — gained a significant win this month when a federal appeals court upheld the agency’s Mercury and Air Toxics Standards (MATS).

The coal and electric utility industries have been fighting MATS since the standards were finalized in 2011, and they still could appeal the court’s decision. However, largely because of MATS’ massive benefit to public health and the economic pros of cleaning up air pollution, industry efforts to derail the standards are especially misguided.

Also, since MATS is set to take effect in April 2015, a short time in the convoluted universe of federal rulemakings and the courts, appealing to the U.S. Supreme Court could increase regulatory uncertainty and backfire in a big way.

According to the EPA, once MATS is implemented it could prevent up to 11,000 premature deaths, 4,700 heart attacks and 130,000 asthma attacks by slashing emissions of mercury, arsenic and other air pollutants from coal-fired power plants.

Before the MATS was finalized, there had been no federal limits on mercury emissions and other toxic air pollution. Despite the 1990 Clean Air Act amendments that said the EPA “must issue” standards no later than 2002, the rocky and perilous road that new regulations must travel prevented a final rule.

Once the standards were finally made public, entities including power plant builders, coal companies and state governments lined up to challenge the rule. Coal’s staunchest supporters in Congress were also quick to criticize the standards, despite being a decade overdue, as the “centerpiece of Obama’s war on coal,” and compelled their colleagues to also oppose it.

The White Stallion Energy Center, a proposed coal plant in Texas that was abandoned in February, led petitioners in the case heard by the U.S. Appeals Court. Along with various state governments, the U.S. Chamber of Commerce and allies in the energy industry, White Stallion said the EPA had not done enough to prove that the pollutants posed a risk to human health. Let that sink in for a second.

The petitioners could have referred to the EPA’s eight-volume Mercury Study from the late nineties, a report to Congress required under the Clean Air Act amendments, that described the neurotoxic effects of methylmercury and its ability to bypass placental and blood-brain barriers, and damage the nervous system. They could’ve looked to the National Academy of Sciences’ “Toxicological Effects of Methylmercury,” which documented instances of population poisonings and high-level exposures of subsistence fishing communities. Or, if they were short on time, they could have just consulted Wikipedia.

Groups opposed to MATS also claimed that the EPA didn’t take into account the rule’s price tag — annual costs could approach $9.6 billion and the Congressional Research Service says it is among EPA’s most expensive regulations. But the court ruled that EPA was right, or at least not wrong, when it did not consider costs before concluding that regulating mercury emissions is “appropriate and necessary.”

As the court noted, a consideration of costs is not required by the Clean Air Act. But had the EPA studied costs, its conclusions would likely mirror those of the Office of Management and Budget last year, which found that the benefits of MATS would range between $33 billion and $90 billion. Or maybe it would have been closer to the Economic Policy Institute’s 2011 estimate that the savings in health costs from clean air regulations would be between $55 billion to $146 billion per year.

Because about two-thirds of human-generated mercury comes from burning coal, the electric utility industry plays a particularly important role in reducing human exposure to the heavy metal. Many major industry stakeholders have moved forward, making the necessary investments and accepting the new rules as imminent. But others could still opt to appeal the decision to the Supreme Court. However this all plays out, by this point, it’s too late for the industry to go back.

Here’s how SNL Financial’s Glen Boshart describes the hurdles facing MATS’s industry opponents:

“Even if the Supreme Court decides to hear the case, history has shown that the court most likely will not be able to issue a decision until long after the MATS rule is implemented … Moreover, even if the Supreme Court were to side with the petitioners, it probably would remand that decision to the EPA and instruct the agency to consider costs when deciding whether regulation of coal- and oil-fired power plants is appropriate, and the EPA then may reach the same conclusion …

Another factor to consider is that the power industry hates regulatory uncertainty. While some of the parties to the MATS case may decide to pursue appeals, many in the industry most likely will be reluctant to support those efforts because they already have made their investment decisions and do not want those investments to become stranded.”

The saga to reduce harmful mercury pollution has spanned almost three decades. We owe a debt to those who’ve pushed for stronger protections, been frustrated with delays and setbacks, and didn’t let up. Now it appears the story is entering its final chapter — for that reason we can all breathe easy.

About Brian Sewell

Brian is an environmental news junkie concerned with our lagging energy policy and revealing the true cost of coal on our health, the environment and the climate. He is Appalachian Voices' Director of Strategic Advancement.