U.S. Supreme Court Finds Fault in EPA’s Approach to Protecting Americans against Toxic Air Pollution

Washingotn, D.C. — In a narrow 5-4 decision based on technical administrative law grounds, the U.S. Supreme Court today remanded EPA’s Mercury and Air Toxics Standards for Power Plants—a first-ever clean air protection intended to significantly reduce harm from power plant toxic air pollution, including mercury, lead, arsenic, and acid gases. 

Today’s decision resulted from a narrow reading of administrative law that faulted EPA for not considering cost when it decided whether it was appropriate to regulate power plants under the Clean Air Act’s hazardous air pollution safeguards. The record clearly demonstrates that EPA, when deciding how stringent the regulations should be, considered the benefits to public health and compared them with the costs to industry. The Court simply noted that under principles of administrative law, the EPA should have made a similar cost evaluation when deciding whether to regulate at all.

The Court did not vacate the rule but remanded the case back to the DC Circuit Court so that EPA can address this issue.

In response to today’s decision, Southern Environmental Law Center attorney, John Suttles, who represented the American Academy of Pediatrics, American Lung Association, American Nurses Association, American Public Health Association, and Physicians for Social Responsibility as interveners in the case released the following statement.

“We believe today’s decision by the U.S. Supreme Court does not necessarily—and should not—delay vital safeguards for people’s health, particularly in the Southeast, where people are vulnerable to some of the largest concentrations of coal-fired power plants in the country. Coal plants are among the largest sources of toxic pollution into the air we breathe.

The record fully supports EPA’s actions to regulate hazardous emissions from outdated power plants. The Supreme Court did not question or overturn the substance of the rule, or EPA’s conclusion that the public health benefits of new safeguards vastly outweigh the costs to industry to institute modern pollution controls. Today’s decision requires EPA to cure an administrative error, but it should not be seen as a defeat for these critical protections, which protect children and families vulnerable to toxic mercury, lead, arsenic, and other heavy metals from one of the biggest unregulated sources of toxic air pollution from coal-fired power plants.

Our position is this rule needs to be kept in place. Many sources have already implemented the rule, providing vitally important public health protections without significant costs to ratepayers. We believe those should remain in place while EPA addresses this procedural defect in the rule.”

Background:
The EPA’s Mercury and Air Toxics Standards will save every year up to 11,000 people from   premature death, and prevent every year nearly 5,000 heart attacks and 130,000 asthma attacks. Additionally, the standards will help avoid more than 540,000 days when people have to miss work because of health problems associated with pollution from power plants. These “sick” days diminish economic productivity and raise health care costs.

The Southern Environmental Law Center and its clients defended the Mercury and Air Toxics Standards against an industry lawsuit that sought to block these limits to emissions of highly toxic air pollutants like mercury, arsenic, acid gases, and lead from coal- and oil-fired power plants. Under the 1990 Amendments to the Clean Air Act, these standards were already two decades overdue when EPA adopted them in December 2011 and are based on successful measures already in place in many plants across the Southeast.

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About the Southern Environmental Law Center: The Southern Environmental Law Center is a regional nonprofit using the power of the law to protect the health and environment of the Southeast (Virginia, Tennessee, North and South Carolina, Georgia, and Alabama). Founded in 1986, SELC's team of nearly 60 legal and policy experts represent more than 100 partner groups on issues of climate change and energy, air and water quality, forests, the coast and wetlands, transportation, and land use. www.SouthernEnvironment.org