Environmental Protection Agency Administrator Gina McCarthy said Tuesday that she’s not worried about last week’s Supreme Court ruling against the agency’s rules limiting mercury and air toxic emissions from power plants.
The ruling was “very narrow,” McCarthy said at an event sponsored by the Christian Science Monitor. She added that she did not believe it had wider implications for the rest of the Obama administration’s plans to crack down on power plant emissions.
The Supreme Court ruled that the agency had not appropriately considered the costs of its 2011 rule limiting the emission of mercury and other air toxics from power plants. The decision sends the rule back to the D.C. Circuit Court, which will decide whether it will stay in place while the EPA evaluates its costs to comply with the higher court’s ruling, or if the agency will have to take additional steps before a rule can proceed.
The mercury rule, she said, is still in effect while the agency awaits direction from the circuit court. McCarthy pointed out that the majority of power plants — 70 percent, according to agency estimates — have already invested in technology to reduce their emissions. “We are well on our way to delivering the reductions in toxic air pollution that people expected,” said McCarthy.
She also said the agency is not concerned that the ruling would affect the Obama administration’s Clean Power Plan, a separate pair of rules that address greenhouse gas emissions from new and existing power plants. Those rules are expected to be finalized this summer. “Everyone knows we’re looking at costs from the get-go” for those rules, said McCarthy.
The mercury ruling “hinged on a very narrow provision in the law,” McCarthy said. “It doesn’t impact other rules and programs that deal with other types of pollution under the Clean Air Act. Those things are not impacted and will continue.”
McCarthy said she wasn’t concerned about Republican governors, such as Scott Walker of Wisconsin or Mike Pence of Indiana, who have indicated their states won’t comply with the greenhouse gas rules as they are currently drafted. Nor is she particularly worried about lawsuits challenging the plan.
“We certainly know how to defend lawsuits, for crying out loud,” said McCarthy. “The Clean Power Plan will absolutely be litigated. Is there a single rule we’ve talked about that is not going to be? We’re very good at writing rules and defending them, and this is no exception.”
The finalized rules will be released later this summer, and will include changes in response to the 4.3 million comments the agency received.
Industry groups and 23 states challenged the rule, arguing that the EPA failed to take into account the cost of compliance, which they put at $9.6 billion.
“We are reviewing the decision and will determine any appropriate next steps once our review is complete,” said EPA spokeswoman Melissa Harrison on Monday. “EPA is disappointed that the Court did not uphold the rule, but this rule was issued more than three years ago, investments have been made and most plants are already well on their way to compliance.”
The question before the court hinged on the interpretation of a line in the Clean Air Act stating that the EPA “shall regulate” emissions from electric utilities if the agency finds that “such regulation is appropriate and necessary.” The court assessed whether the EPA’s interpretation of the word “appropriate” had to include the costs of compliance.
“It is not rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits,” wrote Scalia in the majority opinion.
Environmental groups criticized the ruling, and argued that the EPA should be able to tweak the mercury rule to comply with the court’s decision.
“The Court has sided with the Dirty Delinquents — the small percentage of coal-fired plants that haven’t cleaned up — and against the majority that are already protecting our children from mercury and other toxic pollutants,” said Environmental Defense Fund President Fred Krupp in a statement. “It’s critically important for our nation that these life-saving protections remain in place while EPA responds to the Court’s decision, and EDF will focus its efforts on ensuring these safeguards are intact.”
The mercury rule is one of several major regulations from President Barack Obama’s EPA limiting emissions from power plants, specifically units that are coal-powered. The agency is finishing rules limiting greenhouse gas emissions from both new and existing power plants as well, with the final rules expected within weeks.
A federal appeals court upheld the regulations in 2014. The Supreme Court heard oral arguments in March.
Read the full decision here: Michigan v. Environmental Protection Agency