High court rejects request to block mercury rule

The high court ruled past year that the EPA should have considered costs and benefits before imposing limits on mercury and other air pollutants from coal- and oil-fired power plants.

The court said Monday in a brief unsigned order that it would not near the appeal. EPA, supported by the Sierra Club and other public health and environmental groups, as well as several states and some electricity producers, pointed out in their responses that the agency had already completed the mandated cost assessment, rendering that question largely moot, and that virtually all power plants had already complied with MATS’ requirements, providing no pragmatic reason to suspend the protections.

The appeals court held that the “citizenship clause” of the U.S. Constitution’s 14th Amendment does not automatically extend to unincorporated U.S. territories like American Samoa.

The mercury rule is separate from the Clean Power Plan, which limits carbon dioxide emissions and is now on hold due to a Supreme Court stay.

The new regulations change how much allowable mercury and other toxic chemicals primarily coal-fired power plants emit into air.

The Justice Department said USA territories are not “in the United States” within the meaning of the Constitution, so only Congress can confer citizenship, as it has for all territories except American Samoa.

The petitioners, led by MI, had been challenging the U.S. Environmental Protection Agency’s (EPA) proposed Mercury and Air Toxics Standard (MATS) rule, which the agency unveiled in late 2011 (see Daily GPI, Dec. 21, 2011).

The EPA said it is “pleased” with the decision. It’s been blamed for the shutdowns of hundreds of coal-fired power plants.

The EPA estimates that MATS will prevent up to 11,000 premature deaths and more than 100,000 asthma and heart attacks each year. Power plants’ mercury emissions are particularly harmful; children exposed to mercury, even in utero, can suffer severe cognitive disabilities. Plaintiffs in that case have said the court probably issued a stay on the CPP because of the MATS case.

MATS was subsequently sent back to the EPA for further consideration of the costs to industry, and the appellate court was also instructed to determine whether MATS should remain in effect while EPA conducts its analysis.

The litigations who previously challenged the regulation in court are also challenging the April supplement.