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Supreme Court Thwarts EPA Mercury Rules In A Victory For Texas

Tom Pennington
Texas Tribune
Steam rises from the stacks at the Martin Lake Coal-Fired Power Plant in Tatum, TX March 30, 2011.

A coalition of states including Texas has defeated the Environmental Protection Agency in a battle over major regulations on mercury, acid gases and other toxic metals emissions that spew from power plants, including many plants in Texas.

The U.S. Supreme Court on Monday ruled that the EPA did not properly weigh the cost of compliance for coal-fired power plants against the benefits to public health while setting the new standards.

The decision sent the agency back to the drawing board on the regulations, which went into effect in April. 

The lawsuit was one ofat least 19 of the state's challenges to EPA regulations during President Obama’s administration. Texas has now scored six clear victories in those cases, but this was its first Supreme Court triumph. 

With other states, Texas argued that the EPA didn't properly consider the $10 billion annual price tag of its regulation, 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 challenged them.

The EPA countered that Congress never directed the agency to consider costs the way Texas and other states think it should. And in any case, the agency argued, the benefits far outweigh the costs. The agency asserted that the new limits would have prevented 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.

Back in 1990, Congress simply asked the agency to study the effects of mercury and other toxic air pollution from power plants, and to decide whether regulating them would be “appropriate and necessary.” President Bill Clinton's EPA decided that it was. The EPA under President George W. Bush changed its mind. And then a court challenge tossed out the Bush administration policy. What followed was the 2012 Mercury and Air Toxics Standard, which the justices considered. 

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

The EPA says that the benefits of the mercury rule could total as much as $80 billion, which dwarfs the estimated $10 billion cost.

But opponents say the $80 million figure is misleading. Only $4 million to $6 million 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.

This developing story will be updated.

The Texas Tribune provided this story.