The U.S. Supreme Court waded into a major environmental controversy today when it announced that justices would decide whether federal regulators should consider financial costs when they decide to impose new restrictions on the amount of mercury and other pollutants that end up in the air from electrical utilities’ power plants.
The justices agreed to hold a one-hour oral argument, likely early next year, on three separate challenges to the U.S. Environmental Protection Agency. The court said the argument would be limited to whether the EPA “unreasonably refused to consider costs in determining when it is appropriate to regulate hazardous air pollutants emitted by” utility plants.
The court is stepping into a major confrontation that has lasted for a decade and a half. In 2000, the EPA under President Bill Clinton first issued the mercury restrictions, a decision reversed in 2005 by the administration of President George W. Bush. That decision was then reversed in 2012 by the administration of President Barack Obama.
On one side of the dispute is the mining and electric-utility industry as well as Ohio and 22 other states, most scattered across the Midwest and deep South. They claim that restrictions imposed on coal- and oil-fired utility plants in 2012 are prohibitively expensive and will lead to marginal gains in clean air.
On the other side are 16 states, including California, Massachusetts and Maine, that have joined with environmental organizations to urge the justices to uphold a decision made this year by the U.S. Court of Appeals for the District of Columbia that the EPA regulations were legal.
By limiting the arguments to whether new regulations are cost effective, at least four of the justices signaled they have some sympathy for the legal challenges filed by Ohio and industry organizations.
In papers filed with the court, William Brownell, a Washington attorney for the Utility Air Regulatory Group, one of three groups challenging the EPA, wrote that the 2012 rule “is the most costly rule ever issued by EPA. It imposes costs on the utility industry of over $9 billion annually” and warned that “the costs and other impacts of this rule will ripple through the economy.”
The court’s decision could affect the multiple coal-fired power plants throughout Ohio, as well as the people who live near them.
American Electric Power, which owns five coal-fired power plants in Ohio, is a member of the Utility Air Regulatory Group.
Melissa McHenry, an AEP spokeswoman, said that the company was pleased that the Supreme Court opted to review the three cases.
“EPA’s own cost-benefit analysis found that the costs of this regulation far exceed the benefits attributable to the reductions in hazardous air-pollutant emissions,” McHenry said.
She added that regulating hazardous emissions from electricity-generating units was only supposed to be undertaken if “appropriate and necessary” after implementation of the other programs required by the 1990 Clean Air Act Amendments.
Almost 70 percent of the total electricity used each year in Ohio comes from coal, according to the U.S. Energy Information Administration.
The Ohio attorney general’s office said in a statement that the Ohio state government sides with the industry.
“Ohio and the other states believe the U.S. EPA is violating the Clean Air Act by refusing to take into account the costs of its power-plant regulations when deciding whether to adopt them — in this case, $9.6 billion for the regulation in question — costs which will likely be passed on to Ohioans and other Americans who pay utility bills,” said Dan Tierney, a spokesman for the Ohio attorney general’s office.
The Ohio Environmental Council, along with a number of other environmental and health organizations, filed a brief opposing the energy industry’s efforts to get the Supreme Court to review the three cases, said Trent Dougherty, managing director of legal affairs for the council.
“The lower court’s decision was both the legally correct outcome and also the best outcome for human health and the environment,” Dougherty said. “We are confident the high court will reach the same conclusion.”