Outside the U.S. Supreme Court Building after Monday's ruling on the implementation of EPA mercury pollution regulations. REUTERS/Jonathan Ernst

The court rejected the EPA’s new Mercury and Air Toxics Standards, deeming it too expensive to implement. That’s bad for cities.

The U.S. Supreme Court fanned away one of the Obama administration’s toughest regulations on air pollution Monday morning. By rejecting the U.S. Environmental Protection Agency’s Mercury Air Toxics Standards (MATS) rule SCOTUS has stripped away a vital tool with significant implications for environmental and public-health protections for cities. The EPA’s MATS regulations focus on coal- and oil-burning power plants, requiring them to modify the design of their facilities so that they emit less harmful air pollutants.

Five justices from the court’s conservative wing agreed that the EPA considered the costs of such design modifications too late in its process of finalizing the new mercury standards. On Monday, SCOTUS ordered the case back to the D.C. Circuit Court, which had already upheld the EPA’s MATS rule back in April 2014. Reading for the majority, Justice Antonin Scalia said Monday: "EPA must consider cost—including cost of compliance—before deciding whether regulation is appropriate and necessary. It will be up to the Agency to decide (as always, within the limits of reasonable interpretation) how to account for cost."

Said Tom Donnelly, counsel for the D.C.-based Constitutional Accountability Center, which filed a brief in support of the EPA on this case, “For the first time ever, the Court requires the EPA to consider compliance costs for industry without any mention by Congress of such a requirement. As Justice Kagan wrote in her dissent, ‘That is a peculiarly blinkered way for a court to assess the lawfulness of an agency’s rulemaking.’”

The EPA found it appropriate and necessary to regulate mercury years ago, and was ordered in a 2011 consent decree from the federal D.C. Court of Appeals to finalize a new rule on this. The agency has been obligated to develop these rules since the passing of the new Clean Air Act amendments in 1990. The MATS rule that the EPA finalized in 2012 would, according to the agency’s website, avert up to 11,000 deaths, 4,700 heart attacks, and 130,000 asthma attacks annually. Additionally, the new standards “are especially important to minority and low income populations who are disproportionately impacted by asthma and other debilitating health conditions,” reads the EPA’s MATS fact sheet.

Many of those health impacts are felt at the city and county level, where the polluting facilities are located. Mercury surfaces most commonly in water bodies, accumulating in its more poisonous form, methlymercury, in fish. Communities where people subsist on fish—like in cities and communities across the Gulf Coast—are at the highest risk for toxic exposure because of this. Pregnant women and their babies are most in danger, with scientific studies showing that “more than 75,000 newborns each year may have increased risk of learning disabilities associated with in-utero exposure to methylmercury.”

The map below, from the nonprofit organization Environment America shows the areas with the largest concentration of mercury pollution from power plants in 2010. Below the map is a chart listing the 10 dirtiest plants in terms of mercury pollution, also for that year.   

                                                                                                                      (Environment America)
                                                                                                                        (Environment America)

Fortunately, many of these facilities have already adopted the newly designed equipment and technology that achieves the required mercury emissions reductions. Some 60 percent of the coal industry had installed wet and dry scrubbers on power plants by 2011, and those are widely regarded the most expensive technology needed for MATS compliance. Another 70 percent already had electrostatic precipitators, another expensive device for controlling pollution, by 2011.  

In fact, 64 percent of coal-fired power capacity already had the new pollution control designs in place by the end of 2012, according to a court brief filed by a coalition of state and local governments in support of MATS. In 2010, reads the brief, power plants in North Carolina had reduced certain air toxic emissions by 72 percent with technology already in place. Other states can boast the same—including Michigan, the state that ironically brought the case challenging the MATS rule. Said the state/local governments coalition in a follow-up court brief to Monday’s ruling:

Petitioners’ exaggerated claims of widespread adverse effects on industry and consumers are contradicted by the actual experience of several states that have already imposed standards at least as strict as the MATS Rule. Given the record of successful implementation of state standards more rigorous than the MATS Rule, as well as state implementation of other EPA rules requiring technological controls similar to those required by the Rule, no practical considerations warrant this Court’s review.

Still, the implication of this ruling could be that power plants that have already started using the new technology, or were planning to, could reverse course. Power companies now lose a huge incentive to make any upgrades or improvements to new pollution-control designs, even if the equipment is not achieving the desired result. The consequences of that will be heavily felt by those who live, work, swim, and eat in close proximity to these plants.

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