Supreme Court to review EPA mercury emission rules

WASHINGTON — Federal limits on mercury emissions from power plants, nearly 15 years in the making, will be reconsidered by the Supreme Court.

The justices on Tuesday agreed to hear complaints from 21 states and industry groups that regulations first imposed in 2000 on coal- and oil-fired utilities are too expansive and expensive.

It was the latest twist in an on-again, off-again effort by the Environmental Protection Agency to cut down on emissions that can pose a health threat, particularly to children and pregnant women who consume fish from polluted waters.

The EPA first imposed regulations in 2000 under President Bill Clinton, reversed field in 2005 under President George W. Bush, and reversed itself again in 2012 under President Obama.

The U.S. Court of Appeals for the D.C. Circuit upheld that action last year, ruling that the government did not have to consider costs until it sets specific emission levels, and that it did not have to decide on each air pollutant separately. The regulation sweeps in other pollutants, such as acid gases, that are not considered as dangerous as mercury.

But that 2-1 ruling came with a dissent from Judge Brett Kavanaugh, who said the EPA should have considered the estimated $9.6 billion annual cost. Industry briefs claim the potential benefit from reduced pollution is roughly half that amount.

"The extraordinary costs of EPA's rule will be borne by consumers of electricity – i.e. everyone in the nation – causing a significant nationwide economic impact in exchange for relatively little public health benefit," the states wrote in their appeal. The EPA had estimated that the regulations would raise the average consumer's monthly electricity bill by $3 to $4.

The government estimated that 7% of women of childbearing age are exposed to excessive mercury emissions, and that preventing premature deaths and brain damage in children could be worth $37 billion to $90 billion a year.

"We are confident that EPA acted properly in regulating harmful toxic air pollution from power plants, which remain the largest source of a number of these pollutants, including mercury," the agency said in a statement responding to the high court's action Tuesday.

Sixteen other states backed the EPA. Led by Massachusetts, they argued that because emissions cross borders, they require federal rules.

Emissions can be reduced by installing scrubbers and other pollution-control devices. Plants can also switch from coal to cleaner-burning natural gas. Nearly two-thirds of the nation's power-generating units had the appropriate pollution control technology by the end of 2012, according to the U.S. Energy Information Administration.

The court's consideration of the case comes after it ruled in two major environmental cases last term:

• A divided court in June blocked the government from requiring permits for greenhouse gas emissions from new or modified industrial facilities. But the 5-4 ruling did not prohibit other means of regulating the pollutant that causes global warming.

• The justices ruled 6-2 in April that 28 upwind states in the Midwest and South whose polluted air flows north and east must comply with a federally imposed solution for ozone and fine particle pollution.