The Supreme Court Gives Power Plants a Mercury Break
Yesterday, the Supreme Court in Michigan v. EPA threw out EPA’s regulations protecting the American public from mercury and other hazardous emissions of power plants.
In another instance of judicial activism by the Roberts court, the majority refused to defer to EPA’s decision to ignore costs in deciding whether to regulate power plant emissions.
The decision turned on the meaning of the word “appropriate” in a section of the Clean Air Act that addressed hazardous air pollutant (HAP) emissions from fossil fuel-fired power plants. Before EPA subjected HAPs emissions from power plants to stringent technology-based regulations, it had to decide whether regulating those emissions was “appropriate and necessary,” given the other controls that the statute imposed on power plants to reduce acid rain.
If EPA made the “appropriate and necessary” finding, the statute required EPA to subdivide power plants into various categories and promulgate emissions limitations for new and existing plants in those categories based on the “maximum achievable control technology” (MACT). The statute defined MACT to mean the very best operating plant in the category in the case of new power plants above a certain size and the top 12 percent of plants in the category for …
In Michigan v. EPA, the Supreme Court reviewed the Environmental Protection Agency's decision to regulate power plants under section 112 of the Clean Air Act. Section 112 is the provision regulating toxic air pollutants, such as mercury. The question before the Court was whether EPA reasonably interpreted the Clean Air Act to allow EPA to decline to consider costs in deciding whether to regulate power plants under section 112. The Court held that it was not reasonable to interpret the Act in this way. Thus, from the Court's decision, we know that EPA must consider costs in deciding whether to regulate power plants under section 112. There are, however, important questions that remain:
1. We do not yet know what happens to EPA's rule while EPA does the analytical work the Court has required of it. The Supreme Court reversed the judgment of the …
President Obama’s approval rating is up to 50 percent for the first time in two years after a stellar period of national reconciliation and the safeguarding of Obamacare, his signature, and truly momentous, achievement. The president, in fulfillment of his noble promises to help the middle class, is about to put his weight behind a Labor Department rule that would hike minimum earnings needed to earn overtime pay, a proposal that would affected 5 million Americans. These accomplishments remind people why they voted for him in the first instance and returned him to office by a very comfortable margin.
But for those of us who believe that people should be able to go to work without getting sick or dying, a remarkable series of stories by the Center for Public Integrity can only strengthen the despair that has been building slowly since the president took office …
In a sweeping display of judicial activism the Supreme Court has made it much harder for the EPA to protect Americans from the dangers of exposure to mercury emissions.
The Supreme Court today tossed out EPA’s regulations protecting the American public from mercury and other hazardous emissions of power plants.
Justice Scalia refused to defer to EPA’s decision to ignore costs in deciding whether to regulate power plant emissions.
Unfortunately, this means that EPA will have to go back to the drawing board and make a fresh determination whether it is appropriate to regulate mercury emissions from power plants after considering the costs of the regulations.
Fortunately, EPA has already determined that the benefits of the regulations far outweigh the costs. The agency just needs to formalize that determination after allowing public comment on it.
The Supreme Court’s decision will not have much …
Today the Supreme Court blocked a key effort by the Obama administration to keep unsafe levels of mercury and other toxins from spilling into our air. The ruling, issued in Michigan vs. EPA, is a loss for the EPA and public health advocates. But the damage can be contained and will hopefully not prevent the agency from re-issuing its so-called Mercury Rule under a rationale that can satisfy the Court’s newly divined decision-making standards.
At issue was whether the Clean Air Act required the EPA to consider costs to industry when it made the decision to regulate mercury, a known neurotoxin. Because the Act does not mention cost considerations at this early stage of rulemaking, the EPA reasoned such review was unnecessary. At any rate, the EPA had explicitly considered costs in the second stage of analysis when it chose the actual numeric pollution limit. And …
The Supreme Court's decision in King v. Burwell is, of course, most important for its central holding that the Affordable Care Act's federal subsidies are available even on federally established health exchanges. The decision preserves health insurance subsidies for millions of people who have begun to benefit from them and avoids the ridiculous spectacle of taking the subsidies away based on four words ("established by the State") in a lengthy and complicated statute.
But for those who, like me, are not health care experts but teach and write in environmental law, the majority opinion by Chief Justice Roberts is principally worth studying for its approach to statutory interpretation. Especially for those following EPA's impending regulation of greenhouse gases from power plants under section 111 of the Clean Air Act, which has already drawn attacks based on a purported lack of statutory authority, the Court …
Earlier this week, the House of Representatives passed H.R. 2576, an update to the long-outdated Toxic Substances Control Act (TSCA), which governs regulation of toxic chemicals.
CPR Member Scholar and University of Richmond Law School professor Noah Sachs and CPR Executive Director Matthew Shudtz wrote a piece for The Hill, highlighting some crucial problems with the bill the House passed.
They note:
Both bills, for example, require EPA to move through the backlog of untested chemicals and make safety determinations. A safety determination is a ruling by the agency about whether the chemical poses ‘unreasonable risk’ to human health or the environment – a first step for further regulatory action.
But astoundingly, the House bill requires the agency to initiate only 10 chemical evaluations per year ‘subject to the availability of appropriations,’ and the Senate bill requires EPA to make these safety determinations for only 25 chemicals …
Anyone who cares about the development of sound public policy has grown distraught over congressional gridlock. The House and Senate are dysfunctional to an extent not seen in modern times. Neither is able to develop bipartisan legislation to deal with a slew of urgent social problems, from immigration and the minimum wage to the strengthening of outdated health and safety laws. But the kneejerk glee that accompanies any bipartisan action regardless of content is just as dangerous. Take, for example, the bill to “reinvigorate” the Toxic Substances Control Act (TSCA) that just passed the House by a vote of 398 to 1.
The sad truth is that we don’t require enough testing on toxic chemicals before chemical manufacturers market them in this country, and public health has paid a heavy price for this omission. It’s difficult to think of more than a very small handful …
TMDL. The first four posts cover the region as a whole, and then Pennsylvania, Virginia, and Maryland. Future posts will explore the progress of the remaining three jurisdictions.
So far, we have evaluated progress of the three core jurisdictions in the Chesapeake Bay Watershed in reducing nutrient and sediment pollution under the Chesapeake Bay Total Maximum Daily Load (Bay TMDL). These “big three” states and members of the Chesapeake Bay Commission are the biggest contributors to the pollution problem affecting the Bay and, at least in the case of Maryland and Virginia, appear to have the most at stake if the Bay itself is finally restored. But we now turn to the region’s periphery, where the big challenge may be how to motivate the people and policymakers in the Bay’s hinterlands – such as Upstate New York.
Whatever their motivation, officials in New York State must …
When your public approval rating has hovered at or below 20 percent for the last several years, maybe the last thing you should be doing is maligning other government institutions. That didn’t stop a group of Senators from spending several hours doing just that today during a joint hearing involving the Senate Budget and Homeland Security and Government Affairs Committees. The joint hearing was nominally about a nonsense regulatory reform proposal called “regulatory budgeting” (for more on that, see here), but it quickly devolved into a no-holds-barred hate session directed at federal agency employees, as the upright and honorable members of the “world’s greatest deliberative body” repeatedly attacked the prevailing “culture” at agencies.
The term “culture” was repeated dozens of times throughout the hearing, as the conservative members of the committee waxed patronizingly about the need to change the “culture” at agencies. The Republican Senators …
