Court sides with industry on power plant emissions

Supreme Court decision is a setback to one of the biggest environmental actions of the Obama administration.

 

The Supreme Court this week dealt a setback to one of the biggest environmental actions of the Obama administration, a rule designed to slash mercury and other toxic air pollution from power plants. The court found that the Environmental Protection Agency acted irrationally and illegally when it failed to consider costs before it decided to write the first-ever regulations for this type of hazardous air pollution from electricity generated from coal and oil.

It was a clear win for the 21 states — including Arizona, Alaska, Utah, Wyoming, North Dakota and Idaho — and some industry groups that challenged the 2011 rule in Michigan v. EPA. But the ultimate outcome likely will not be a victory for the challengers. The Supreme Court did not cancel the rule but sent it back to the DC Circuit Court. In the meantime, the rule remains in effect and Janet McCabe, who heads the EPA’s air office, vowed to work to ensure “that standards remain in place to protect the public from toxic emissions from coal and oil-fired electric utilities.” The EPA estimates the rule will avert up to 11,000 premature deaths, 4,700 heart attacks and 130,000 asthma attacks every year.

Talen Energy's Colstrip power plant in Montana will still be upgraded to meet new EPA rule despite Supreme Court ruling.
The lower court could give the agency the chance to address the Supreme Court’s complaints without undoing the rule.

“I think this is completely fixable,” Carol Browner, former EPA administrator under President Clinton, told HCN.

Impacts on air quality likely will not be great, at least in the short term. The rule took effect in April, and many of the hundreds of power plants covered by the regulation already have installed pollution controls and some shut down or switched to natural gas. (They knew this was coming since 2011, so the requirements implicit with this rule as well as other air pollution regulations made these old coal plants too expensive to operate.) Many states — including Montana, Colorado and Arizona — also have their own mercury regulations.

  • In Montana, the Corette Power Plant recently closed, saying the plant was not profitable enough to justify installing the pollution control equipment required to meet the federal mercury rule. Talen Energy just bought that defunct plant and the much larger Colstrip Power Plant, which received a year-long extension to comply with the federal mercury rule. Despite the Supreme Court decision, the company plans to continue an $11 million upgrade to the scrubbers at Colstrip to meet the more stringent federal standards, according to Todd Martin, spokesman for Talen Energy, a new Allentown, Pennsylvania-based company that owns plants and generates power in several states.“From our perspective, this decision does not change our strategy, our planning or our operational approach,” said Martin.
  • In Utah, the Carbon plant in Price shut down this spring, as HCN reported, and PacifiCorp said it has no plans to reopen it.
  • In Arizona, all four major coal-fired power plants also got extensions. But under state rules those plants are obligated to slash mercury emissions by about the same amount as required by the federal rule, 90 percent, by 2016. So the air quality in Arizona will not be impacted regardless of the fate of EPA’s rule.

Still, Eric Massey, director of Arizona Department of Environmental Quality’s air quality division, hopes the EPA takes to heart a strong message from this Supreme Court ruling: “that cost has to play a significant role in determining reasonable emission reductions.” In particular, Arizona is asking the EPA to reduce the state’s target for reducing greenhouse gas pollution from power plants as part of the Obama Clean Power Plan.

The Supreme Court’s decision was just the latest expression of the majority’s intolerance with environmental regulations that fail to take costs into account. The EPA did consider costs later, when determining which pollution controls would be required for various types of power plants to meet the mercury rule. But in his majority opinion, Justice Anton Scalia said that was too late, especially given that the costs to industry were estimated at $9.6 billion a year.

“By EPA’s logic, someone could decide whether it is ‘appropriate’ to buy a Ferrari without thinking about cost, because he plans to think about cost later when deciding whether to upgrade the sound system.”

But Justice Elena Kagan, who represented herself and three other justices in her dissent, called Scalia’s sport’s car comparison “witty but wholly inapt.” Pollution controls are not a luxury like a stereo but a remedy to a serious environmental problem that would save “many, many lives,” according to her dissent.

“A better analogy might be to a car owner who decides without first checking prices that it is ‘appropriate and necessary’ to replace her worn-out brake-pads, aware from prior experience that she has ample time to comparison shop and bring that purchase within her budget,” Kagan wrote.

The rule is part of a multi-pronged initiative by the Obama administration to clean up electricity generation. The heart of that effort, the Clean Power Plan — the first U.S. regulations of carbon dioxide from existing power plants — is due out later this summer.

Supporters of the Clean Power Plan say that the justices’ opinion in the mercury case did not undermine the legal footing of the Clean Power Plan.

“They didn’t have anything to say in this mercury decision that makes me worry for the carbon rule,” said David Doniger, a lawyer for Natural Resource Defense Council.

More challenges could await the mercury rule. The Supreme Court failed to provide direction on some of the most intensely disputed issues in Michigan v. EPA case. When the EPA calculated the health benefits of the rule, most came from reducing fine particles, pollutants that were not specifically targeted by the rule. Challengers argue that these ancillary benefits should not be counted.

“This is by no means the end of this,” said Thomas Lorenzen, an industry lawyer who used to work for the Justice Department.

Still, the decision was probably the Obama administration’s biggest loss in the Supreme Court on environmental issues.  “I can’t think of a bigger rule,” said Lisa Heinzerling, a professor at Georgetown University who served as senior lawyer for the EPA during Obama’s first term. “And I can’t think of a bigger defeat.”

Elizabeth Shogren is HCN’s DC Correspondent. 

High Country News Classifieds
  • WATER PROJECT MANAGER, UPPER SAN PEDRO (ARIZONA)
    Based in Tucson or Sierra Vista, AZ., the Upper San Pedro Project Manager develops, manages, and advances freshwater conservation programs, plans, and methods focusing on...
  • CAMPAIGNS DIRECTOR
    Southeast Alaska Conservation is hiring. Visit https://www.seacc.org/about/hiring for info. 907-586-6942 [email protected]
  • FINANCE & GRANTS MANAGER
    The Blackfoot Challenge, located in Ovando, MT, seeks a self-motivated, detail-oriented individual to conduct bookkeeping, financial analysis and reporting, and grant oversight and management. Competitive...
  • WADE LAKE CABINS, CAMERON MT
    A once in a lifetime opportunity to live and run a business on the shore of one of the most beautiful lakes in SW Montana....
  • CONTRIBUTING EDITOR, BOOKS, CULTURE AND COMMENTARY (PART-TIME, CONTRACT)
    High Country News is seeking a Contributing Editor for Books, Culture and Commentary to assign and edit inquisitive, inspiring, and thought-provoking content for HCN in...
  • STATEWIDE COMMUNITY ORGANIZER
    ABOUT US Better Wyoming is a nonprofit, nonpartisan advocacy organization that educates, organizes, and mobilizes Wyoming residents on behalf of statewide change. Learn more at...
  • EXECUTIVE DIRECTOR
    TwispWorks is a 501(c)3 that promotes economic and cultural vitality in the mountainous Methow Valley, the eastern gateway to North Cascades National Park in Washington...
  • CLEAN ENERGY ADVOCATE OR DIRECTOR
    Location: Helena, Montana Type: Permanent, full time after 1-year probationary period. Reports to: Director of Policy and Legislative Affairs. Travel: Some overnight travel, both in-state...
  • PROFESSIONAL GIS SERVICES
    Custom Geospatial Solutions is available for all of your GIS needs. Affordable, flexible and accurate data visualization and analysis for any sized project.
  • DEVELOPMENT DIRECTOR
    Restore Hetch Hetchy, a 501 (c)(3) nonprofit organization, seeks experienced development professional to identify and engage individuals and institutions who are inspired to help underwrite...
  • PUBLIC LANDS COUNSEL
    The successful candidate will be the organization's lead counsel on public lands issues, including reviewing federal administrative actions and proposed policy and helping to shape...
  • HUMAN RESOURCES DIRECTOR
    Solar Energy International (SEI) is a 501(c)3 non-profit education organization with a mission to provide industry-leading technical training and expertise in renewable energy to empower...
  • TRAINING MANAGER
    This is a full-time position based out of our Paonia office. This position is responsible for organizing all of Solar Energy International's renewable energy trainings....
  • RANCH HAND & HOUSING OPPORTUNITY IN DURANGO, CO
    Remodeled home with the opportunity to work off part of rent. Renter(s) must be available to help with lifting, irrigation & outdoor chores, 15-40 hrs...
  • GUIDE TO WESTERN NATIONAL MONUMENTS
    NEW BOOK showcases 70 national monuments across the western United States. Use "Guide10" for 10% off at cmcpress.org
  • RARE CHIRICAHUA RIPARIAN LAND FOR SALE
    40 acres: 110 miles from Tucson: native trees, grasses: birder's heaven::dark sky/ borders state lease & National forest/5100 ft/13-16 per annum rain
  • ENVIRONMENTAL GEOPHYSICS
    "More Data, Less Digging" Find groundwater and reduce excavation costs!
  • LUNATEC ODOR-FREE DISHCLOTHS
    are a must try. They stay odor-free, dry fast, are durable and don't require machine washing. Try today.
  • 10 ACRES OF NEW MEXICO HIGH DESERT
    10 Acres of undeveloped high desert land in central NM, about 45 minutes from downtown Albuquerque. Mixed cedar and piñon pine cover. Some dirt roadways...
  • OPERATIONS DIRECTOR
    We are a Santa Fe-based nonprofit that builds resilience on arid working lands. We foster ecological, economic, and social health through education, innovation, and collaboration....