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What The 5-4 Supreme Court Ruling Means for Clean Power

Yesterday, the Supreme Court of the United States ruled in favor of the state of Michigan, in the case Michigan v. EPA. This ruling went against the EPA’s ability to regulate toxic air pollutants, an ability that has experienced triumphs and defeats ever since the passage of the Clean Air Act of 1970.

To give some background, beginning in 1970, the government expanded the abilities of the Clean Air Act such that it could regulate the sources of hazardous air pollutants (as opposed to simply monitor them), and created the Environmental Protection Agency to handle this regulation. After that, twenty years went by before a substantial list of one hundred and eighty nine toxic pollutants to be regulated by the EPA was added onto the Clean Air Act through amendments. Within these 1990 amendments, was included a section that called for a study into the “hazards to public health” caused by power plant emissions. This section, section 7412(n)(1)(A), then said that, once the EPA finishes examining the results of the study, it should decide if it is “appropriate and necessary” to regulate the sources of pollution.

It was not until the year 2000, however, that the administration actually finished reviewing the study and determined it to be “appropriate and necessary” to regulate the emissions of power plants. Even still, there was no permanent regulation put in place, as the 2005 Clean Air Mercury Rule successfully regulated emissions for just three years until it was removed in 2008. Finally, at long last, in 2011 the EPA reaffirmed that regulating toxic emissions from power plants was appropriate and necessary, and enacted the 2012 Mercury and Air Toxics Standards (MATS) to regulate harmful power plant emissions.

This brings us to yesterday’s court decision, where the MATS rule was remanded down to the appeals court (meaning the DC Circuit Court will decide whether to keep or to repeal the rule). The Supreme Court ruled that, because the EPA did not initially consider power plant compliance costs when it decided that regulating harmful emissions was “appropriate and necessary,” the ‘appropriate and necessary’ conclusion was thus invalid. Even though the EPA did consider costs of compliance later on when deciding just how strict the regulation would be, the Supreme Court concluded that the EPA was misinterpreting the Clean Air Act by not considering costs in the original decision of whether or not to regulate.

Additionally, the court said that the rule was unreasonable in imposing $9.6 billion a year in costs, because the court believed the benefits to only add up a few million dollars a year. In doing so, the court ignored the tens of billions of dollars in hard-to-quantify yearly benefits, such as preventing children from suffering IQ loss.

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Upon being sent to the lower court for review, the rule can either be deemed completely invalid, and scrapped, or the court can simply allow the EPA to consider consider compliance costs before again deciding that the regulation is appropriate and necessary. In the meantime, until the court makes a decision, the rule will remain in effect. The court previously upheld the rule 2-1, so it is likely that it will allow the EPA to maintain the regulations.

Even if the rule is invalidated and repealed, however, the negative effects will not be significant. Because the rule has already been in effect for some time, the vast majority of power plants have already come to compliance – in fact, just 22 plants, or under 1% of US power generating capacity has not yet complied. Speaking on this matter last Friday, Gina McCarthy, the Administrator of the EPA said “it was three years ago, most of them are already in compliance, investments have been made … and we’re still gonna get at the toxic pollution from these facilities.”

Further, if the DC Circuit Court repeals the rule, it could strengthen the EPA’s ability to regulate carbon emissions with it’s upcoming Clean Power Plan. In regards to this proposed legislature, much opposition has stemmed from the fact that power plants are already regulated under section 112 (through the current MATS rule) of the CAA, and thus cannot be regulated a second time under section 111. If the EPA ceases to regulate power plants under section 112, then they will be more free to regulate them for CO2 emissions under section 111.

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In conclusion, this decision is not such a big blow to clean power as some coal advocates claim. There is a very reasonable chance of the MATS rule being upheld, and even if not then the damages will be minimal and there may even be benefits. Though the court did not rule in favor of healthy, clean, air, United States energy generation continues along the path it is already following; electricity production in the USA will not cease to convert increasingly to renewable sources.


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