Toxic Supreme Court Decision Delays Clean Air Efforts and May Undermine Future Protections

In a decision that will slow the ability of the U.S. Environmental Protection (EPA) to require effective clean air standards, the U.S. Supreme Court recently blocked implementation of requirements that limit mercury and other toxic air pollution from power plants. The decision may also open the door for industry to challenge and delay other important public protections.

The 5-4 majority opinion issued on June 29 stressed consideration of costs to industry in developing clean air rules, rather than the lifesaving benefits to everyday Americans, and ordered the agency to revisit the standards.

The Court’s decision will delay EPA's ability to address a significant public health problem.

Coal and oil-burning power plants represent the nation’s largest source of mercury pollution, spewing 50 percent of total emissions, as well as over 75 percent of acid gases such as sulfuric acid, hydrogen chloride and hydrogen fluoride and 20 – 60 percent of many toxic metals such as arsenic, nickel and cadmium.

Source: U.S. EPA

EPA issued its Mercury and Air Toxics rule in December 2011, which required the installation of pollution control equipment to prevent about 90 percent of mercury emissions from coal-fired power plants. The technology would also eliminate 88 percent of acid gas emissions from power plants and 41 percent of sulfur dioxide emissions beyond the reductions expected from other clean air rules.

Almost 70 percent of the more than 1,400 coal and oil-burning units at 600 power plants have already complied with the rule and installed the necessary pollution control equipment. However, while most of the approximately 200 power plants that received a one-year extension are likely to finalize installation that was already underway, 22 plants still haven’t installed controls and will continue to spew toxic air pollution while EPA is forced to respond to the court decision and reissue the rule.

Power Plants Impacted by Mercury Rule

Source: U.S. EPA

Exposure to mercury in pregnant women and young children has been linked to reduced attention spans, lower IQ, and impaired coordination, memory, and language skills. The electric power industry is the largest source of mercury pollution in the air, which then contaminates our rivers and lakes and is taken up by fish that are caught for food. Across the United States as of 2011 (the most recent data available), mercury pollution contaminated over 16.4 million acres of lakes, estuaries, and wetlands, and 1.1 million miles of rivers.

All 50 states have advisories against eating fish from waterbodies contaminated with mercury. In fact, more than 80 percent of all state fish advisories were prompted, at least in part, because of mercury contamination. A 2002 EPA report indicates that this contamination is especially dangerous for communities of color, low-income populations, and Native American tribes who catch and consume greater quantities of fish than Americans overall.

Acid gases are corrosive and can irritate and burn the eyes, skin, and breathing passages. Long-term exposure to metals can harm the kidneys, lungs and nervous system, and some forms of arsenic, chromium and nickel can cause cancer.

Downplaying these dangers, the coal industry and utilities constantly battle against any upgraded clean air standards.

When fully implemented, the rule will deliver benefits of $41 billion to $99 billion, compared to costs of less than $11 billion.

And that’s not counting the additional benefits that could not be converted into dollars and cents. These include less exposure to other air pollutants like ozone, sulfur dioxide, and nitrogen dioxide; reduced damage to ecosystems; and improved visibility.

But all that pales in comparison to the health benefits for the American public. The rule would save lives and deliver significant health benefits to all Americans, in part because pollution control equipment installed to control mercury would also reduce dangerous small particle and sulfur dioxide emissions.

EPA found that the standards would prevent between 4,200 and 11,000 adult deaths, 20 infant deaths, 2,800 cases of chronic bronchitis, 4,700 heart attacks, more than 2,600 hospital admissions for lung and heart disease, 3,100 emergency room visits by children with asthma, 130,000 asthma attacks in children each year, and more.

The Court's majority opinion downplayed the benefits of clean air standards and ignored EPA's cost considerations.

Astoundingly, as Justice Elena Kagan noted in her dissenting opinion, the majority's ruling ignores the fact that at a number of stages throughout the regulatory process, EPA considered the costs of the rule's pollution control requirements. The agency completed an analysis of both the costs and benefits of the rule in 2011, finding that the benefits of controlling toxic air pollutants would exceed the costs by as much as almost ten to one.

Despite this evidence, Justice Antonin Scalia's majority opinion split hairs and insisted that EPA should have considered costs at the very beginning of the rulemaking process, when the agency was deciding whether to even develop limits on toxic air pollution. To reach this conclusion, the majority opinion tortured the language of the Clean Air Act that required EPA to include estimates of the costs of pollution controls in order to find that the power plant rules were “appropriate and necessary.”

As Kagan concluded in her dissenting opinion, “The result is a decision that deprives the American public of the pollution control measures that the responsible Agency…found would save many, many lives.”

The Court's ruling also opens the door to undermining future health and safety protections.

Cass Sunstein, the former director of the White House office responsible for reviewing most federal rules, claimed in a recent article that “Congress enacts many laws that use words such as 'appropriate' or 'reasonable,' or direct agencies to consider 'efficiency' when taking action. After last week's decision, there is a good argument that, whenever Congress uses such words, agencies are bound to balance costs and benefits.”

Requiring agencies to conduct extensive cost-benefit analyses before even deciding to develop a rule could delay and even ultimately weaken essential public protections based on incomplete and often faulty data.

Where do we go from here?

EPA is expected to revisit and then reissue the mercury and air toxics rule with the Court's requirements in mind. However, although EPA has already calculated the costs of the rule, regulatory process requirements and continued industry and congressional attacks will substantially delay these crucial standards even further. This will result in unnecessary deaths and preventable illnesses each year the rule isn't in place.

And because the Court’s ruling could be applied to future standards and safeguards, industry may have yet another opportunity to challenge agency efforts to protect the public.

The American people deserve better.

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