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Supreme Court decision puts profits above people, but there is a silver lining

June means the end of the US Supreme Court’s session, and is by far the most exciting month for law-nerds, like me.  The four week, fast-paced barrage of monumental decisions is better than any rollercoaster ride.  It goes without saying, though, that this session would have to be the most exciting and most significant since I became a lawyer.

The high point, of course, was last Friday’s historic recognition that every American has the fundamental right to marry the person they love. Yet, it was the Court’s final decision of this session in Michigan v. EPA that held special significance to OEC, and like a rollercoaster, that decision was the final plummet back to Earth.

On Monday, in a 5-4 decision, the US Supreme Court remanded the nation’s first-ever standards for mercury and other toxic air pollution from coal- and oil- fired power plants.

The Court held that the US EPA’s decision not to consider costs to the industry when deciding that it was “appropriate and necessary” to regulate power plants – saving thousands of lives each year in the process – was unreasonable.  Needless to say, the decision is another stern reminder that more work must be done when it comes to environmental protection in the courts.

As I said, Michigan v. EPA has special significance to OEC. For decades OEC has fought from the Statehouse to the Courthouse to curb mercury and toxics pollution.  As the home of some of the country’s dirtiest power plants, Ohio has a lot to gain with strong mercury protections – so  OEC intervened in Michigan v. Ohio, and a number of federal court cases dating back over a decade, to protect power plant mercury regulation from attack.

Whose numbers hold more weight

After years of studying and documenting the health impacts of mercury and air toxics, the EPA determined that regulating pollution from power plants was “appropriate and necessary.” That was the year 2000. Shortly thereafter, the Bush administration fought to reverse this determination, but after a battle in federal court, that attack was upended.  Finally, the Obama administration reaffirmed the 2000 “appropriate and necessary” determination and issued regulations.

The Agency concluded that a rule that dramatically curbs emissions of a neurotoxin that endangers millions of women and children, buttressed by projections that 4,200-11,000 premature deaths and 4,700 non-fatal heart attacks could be prevented per year from the rule’s ancillary reductions in other pollutants, outweighs any cost to the power plant industry.  The coal-burning utilities along with a score of states, including Michigan and (you guessed it) Ohio, took the federal EPA to court for “ignoring” industry costs.

Led by our phenomenal outside attorneys at Clean Air Task Force, the OEC joined with colleague groups Conservation Law Foundation, Environment America, Izaak Walton League of America, Natural Resources Council of Maine, and Penn Future to intervene in Michigan v. EPA and help defend these health safeguards.

Just as the Court focused a lot on numbers (specifically the cost numbers it deemed were unreasonably absent), it was because of numbers that OEC joined this lawsuit in the first place– numbers too important to ignore. For example:

  • 4,000,000. More than 4 million women – almost seven percent of all U.S. women of childbearing age – are exposed to mercury levels that can harm fetal development.
  • 50 (as in 50%). The nation’s coal- and oil- fired power plants account for half of all mercury emissions.
  • 90 (as in 90%).  The standards would have reduced the mercury emissions from power plants by 90 percent.
  • 37 – 90 Billion. The overall benefits to public health from the standards would yield between $37 billion and $90 billion every year.

It’s a bit of harsh irony that US EPA’s first ever rule to curb mercury pollution was found unreasonable because the Agency did not consider the industry’s costs. For decades the state and federal government has ignored the cost of mercury and toxic pollution to the health of hundreds of thousands of people living in the shadow of Ohio’s coal plants. US EPA’s rule finally promised to remove the toxic millstone from the necks of these communities. However, the Supreme Court’s remand defers that promise, at least for now.

Silver linings

After ten years of practicing environmental law in Ohio, what I have learned is that with every setback you need to find the positives and keep on fighting.  So, despite yet another delay in regulating toxic air pollution, there was some good news from Monday’s decision:

1.  The High Court did not vacate the mercury rule.

The Court could have ruled that because industry costs were “ignored” then the rule is illegal.  The court did not do this. Instead, the Court told EPA they need to go back, do more number crunching, and demonstrate they considered cost in the final rule.

2.  EPA’s homework is already done.

EPA’s response to this remand should (and must) be quick and complete.  The Court directed EPA to take costs into consideration in deciding whether to regulate power plant toxic air emissions. EPA, however, had already completed a “Regulatory Impact Analysis” at the time it issued the rule. That analysis found that the public health benefits outweigh the rule’s costs by 9 to 1.

3.  Many plants have already started compliance.

The standards actually took effect on April 16, 2015, and many power plants have already begun preparation to meet them. Other plants have mercifully shutdown permanently.  The hope is that these plants stay shut down.

Unfortunately, the Court’s decision does mean more delay and less certainty.  The pollution limits that would have saved thousands of lives, and increased the quality of life for countless others are in question.  So, we will just have to roll up our sleeves and continue to fight to ensure that proper levels of protection remain in place, and the EPA quickly brings this rule back.  When EPA does re-file the mercury rule, we will most likely be back on that legal rollercoaster again, fighting to secure long overdue protections.