WASHINGTON, DC, June 30, 2015 (ENS) – The U.S. Supreme Court in a 5–4 decision Monday struck down the U.S. Environmental Protection Agency’s first national standards for mercury emissions from coal-fired power plants.

The EPA initially issued the mercury emission standards in late 2011 and said they would cut mercury pollution from power plants by 90 percent.

The Clean Air Act directs the EPA to regulate emissions of hazardous air pollutants from certain stationary sources, such as refineries and factories. The agency may regulate power plants under this program only if it concludes that “regulation is appropriate and necessary” after studying hazards to public health posed by power-plant emissions, the majority justices explained in their decision.

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The worst mercury-emitting coal-fired power plant in the country is Luminant’s Martin Lake power plant in east Texas (Photo courtesy TXU)

EPA found power plant regulation “appropriate” because the plants’ emissions pose risks to public health and the environment and because controls capable of reducing these emissions were available.

It found regulation “necessary” because the imposition of other Clean Air Act requirements did not eliminate those risks.

But the EPA “refused to consider cost when making its decision,” said the Supreme Court, and that’s where a majority of the justices ruled the agency was unreasonable.

“EPA strayed well beyond the bounds of reasonable interpretation in concluding that cost is not a factor relevant to the appropriateness of regulating power plants,” wrote the majority of justices.

“EPA must consider cost – including cost of compliance – before deciding whether regulation is appropriate and necessary,” they wrote.

The ruling affects about 580 power plants across the country.

Five of the country’s worst mercury-emitting power coal-fired plants are located in Texas, according to a January 2013 report from  the Environmental Integrity Project, based on data from the EPA’s Toxics Release Inventory.

Four Luminant plants in East Texas – Martin Lake, Big Brown, Monticello, and Sandow – rank in the top five mercury emitters in the country. Harrison County’s H.W. Pirkey Power Plant, owned by  American Electric Power, is in the top 10. Other states with top emitters are: Alabama, Missouri, Michigan, North Dakota, and Oklahoma.

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Second-worst mercury emitter in the U.S. is Alabama Power’s Plant Gaston on the Coosa River near Wilsonville in Shelby County, Alabama. (Photo courtesy Southern Company)

The Supreme Court left the mercury emission standards in place pending further consideration by the U.S. Court of Appeals for the D.C. Circuit and the EPA.

The majority of power plants are already in compliance with the standards, having met them without reported difficulty since April 2015.

Because EPA has now evaluated the costs and benefits of the rule, the agency should be able to provide the cost analysis required by the Court in short order.

The EPA estimated that the cost of its regulations to power plants would be $9.6 billion a year, but the quantifiable benefits from the resulting reduction in hazardous-air-pollutant emissions would be $4 to $6 million a year, according to the Supreme Court ruling.

Petitioners, including 23 states, sought review of EPA’s rule in the Court of Appeals for the D.C. Circuit, which upheld the agency’s refusal to consider costs in its decision to regulate.

The National Mining Association, which, along with the Utility Air Regulatory Group and 23 states appealed that ruling, praised the Supreme Court’s decision, calling it a “vindication of common sense.”

“The decision effectively puts EPA on notice: reckless rulemaking that ignores the cost to consumers is unreasonable and won’t be tolerated,” said Mining Association President and CEO Hal Quinn.

“It recognizes what the administration has ignored: that every regulatory benefit comes with a cost, and the value of that benefit cannot be known unless its costs are considered,” Quinn said.

The Supreme Court did not reject EPA’s key conclusions:

  • Power plants are by far the worst industrial polluters.
  • Controlling toxic emissions is both technologically and economically feasible.
  • The resulting pollution reductions will yield between $37 billion and $90 billion in health benefits every year.
  • The public will receive $3 to $9 in health benefits for every $1 that the protections cost the power industry.

The public interest law firm Earthjustice helped defend these health safeguards as respondent-intervenors on behalf of: Sierra Club, Clean Air Council, Chesapeake Bay Foundation and the National Association for the Advancement of Colored People, NAACP.

Jacqui Patterson, director of the NAACP Environmental and Climate Justice program, said, “Our report, ‘Coal Blooded: Putting Profits Before People,’ found that the six million people living near power plants in America have a significantly lower average income than Americans nationwide, and a disproportionate number are people of color. The financial interests of corporate entities in maintaining the status quo should not trump protection of the health of these communities.”

“One in 20 Americans is killed by air pollution, and coal-fired power plants are a big part of the problem. These plants are also the largest industrial source of toxic air pollution by far, responsible for 50 percent of total U.S. emissions of mercury, a potent neurotoxin particularly dangerous to children, Earthjustic said in a statement Monday.

Earthjustice points out that nearly seven percent of all U.S. women of childbearing age, more than four million women, are exposed to mercury at levels harmful for fetal brain development. The EPA’s power plant mercury standards will reduce mercury emissions from coal-fired power plants by 75 percent.

Earthjustice’s Vice President of Litigation for Healthy Communities Lisa Garcia said, “The Supreme Court’s decision does not change the importance of EPA’s role in protecting our families and communities from toxic air pollution. The Court gave EPA the ability to finalize these critical public health protections once and for all. Now, EPA must act quickly. Thousands of lives are at stake. Further delay is not an option.”