The recent Supreme Court decision on the mercury regulations we fought so hard to win was a disappointment. But it was not—in spite of misleading headlines in everything from the NYT to Daily Kos — a disaster for public health. It was a procedural decision — focused on the timing of when EPA took costs into consideration when it decided to regulate mercury, arsenic, chromium, and hydrochloric acid gas. I would say the decision was narrow to the point of myopic, completely ignoring the reams of budget analyses EPA undertook throughout the rule-making process.
We think Justice Kagan had it right, in her dissent from Justice Scalia’s majority opinion: the EPA proceeded like : “…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.”
The Supreme Court did NOT void the mercury rule. It did NOT order EPA to stop regulating power plants. It did NOT tell plants not to implement cleaner technology.
But it did, sadly, open the door to the next round of lawsuits, which will go to the DC Circuit. Pro-pollution forces will now try to void these important health protections.
In the world outside of the courthouse, 70% of power plants have already implemented the technology that keeps poisons like arsenic, heavy metals, acid gases and mercury out of our air. And they have done so at a fraction of the cost they claimed it would take. A fraction. We know, because that’s what the power plants are telling utility shareholders.
I wish we could redirect all the dollars polluters and their lawyers have spent on these lawsuits — and use them to protect the people living near the 30% of the plants that haven’t yet cleaned up the poisons they are spewing into the air. Now that would be a winning decision.