On June 29, the Supreme Court sent the Mercury and Air Toxics standards back to a lower court for review on a 5-4 split decision. The American Lung Association expressed disappointment in the Court’s decision, because coal-fired power plants have long spewed out more than 80 toxic pollutants, including mercury, arsenic, benzene, and acid gases. The Mercury and Air Toxics limits, adopted by the Environmental Protection Agency in December 2011, have led many of those plants to install equipment and make other changes that have reduced those toxic emissions. The ruling adds potential delay to essential human health protections. By the time all coal-burning power plants meet these health standards, children with asthma will suffer 130,000 fewer asthma attacks each year. Most importantly, 11,000 premature deaths will be prevented every year.
The Court’s mercury case is largely moot for Minnesota because of the 2006 Mercury Emissions Reduction Act supported by Fresh Energy. Owners of the five biggest coal-burning power units have already cut mercury emissions by 90 percent at a low cost and a much earlier timeline than the 2017 statutory deadline. Nationwide, nearly 70 percent of the utility industry is already in compliance with the mercury and air toxics standard, according to the U.S. Environmental Information Administration. Utilities have already made decisions to comply with the federal rule. In Minnesota, for example, Xcel Energy stopped burning coal at its Black Dog generating plant in Burnsville, and several years ago Rochester Public Utilities made the economic decision to meet the mercury standards by burning the last coal at the Silver Lake plant in downtown Rochester before the April 2015 federal deadline.
The key connection between the mercury case and the Clean Power Plan is the fact that U.S. coal-burning power plants are the single largest source of both toxic mercury pollution and carbon pollution that harms human health. We urgently need clean air limits on both pollutants to protect our communities and families from these dangerous contaminants.
The mercury ruling has little relevance to the Clean Power Plan, because authority for the Clean Power Plan falls under a different section of the Clean Air Act that provides clear direction on cost considerations. The Environmental Protection Agency is using the authority Congress gave it under section 111 of the Clean Air Act to regulate carbon pollution in the Clean Power Plan. Because EPA’s extensive economic analyses work has explicitly considered the costs and benefits of the Clean Power Plan, carbon rulemaking will not be affected:
“The Court’s conclusion that EPA must consider cost when determining whether it is ‘appropriate’ to regulate toxic air emissions from utilities will not impact the development of the Clean Power Plan under section 111,” of the Clean Air Act, said EPA spokeswoman Melissa Harrison. “Cost is among the factors the agency has long explicitly considered in setting standards under section 111 of the Act.”
The Supreme Court has repeatedly affirmed the Environmental Protection Agency’s authority to regulate carbon pollution under the Clean Air Act; in Massachusetts v. EPA the Court held that EPA has a responsibility to address climate pollution on the basis of science and law. It would be unlawful if the Environmental Protection Agency did not address carbon pollution from power plants.
The Court remanded the mercury case to the D.C. Circuit for further consideration. The D.C. Circuit will likely leave the mercury rule in effect while EPA develops a satisfactory explanation for its regulatory approach. We expect the federal government to issue final Clean Power Plan standards for carbon pollution from power plants later this summer.
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