A federal appeals court on Sept. 12 agreed to stay appeals of the U.S. Environmental Protection Agency’s Mercury and Air Toxics Standards (MATS), possibly until March 2013, while the agency rewrites parts of the rule contested by several developers of new power plants.
The decision was out of the U.S. Court of Appeals for the District of Columbia Circuit, where a long list of parties had appealed this rule, which was issued in February and restricts emissions of mercury and other toxics from new and old plants. EPA on July 20 had asked for the delay because it decided to reconsider the new source standards challenged by a group of petitioners called the “New Unit Developers.” That group is composed of White Stallion Energy Center, Deseret Power Electric Cooperative, Sunflower Electric Power Corp., Tri-State Generation and Transmission Association, Tenaska Trailblazer Partners and Power4Georgians, which are parties that primarily plan to develop new coal-fired generating capacity.
Many of the petitioners, including one of the New Unit Developers, also filed administrative petitions for reconsideration of the rule, outside of the court case, EPA noted in its July 20 motion for a stay of the case.
On April 27, the New Unit Developers moved to sever three issues concerning the new source standards from the consolidated case and to expedite briefing on those issues. They subsequently reduced the number of issues subject to their motion to two. On June 28, the court granted the motions, assigned the two issues subject to the motion a new docket number, and set an expedited briefing schedule for the new case.
EPA said it has since determined that it will grant reconsideration in regard to the new source standards that are challenged by New Unit Developers in that action. “Specifically, EPA will reconsider new source issues including measurement issues related to the mercury standard and the data set to which the variability calculation was applied when establishing the new source standards for particulate matter and hydrochloric acid, and it has indicated that reconsideration of those issues may affect the new source standards,” EPA said. “EPA expects that the reconsideration process will result in the issuance of a final reconsideration rule by March, 2013.”
EPA also indicated that, in the interim, it intends to stay the effectiveness of the current new source standards for three months (which is the limit of EPA’s stay authority). Given these developments, EPA said it believes that holding this case in abeyance for the limited time that is needed for it to complete reconsideration is warranted.
EPA added: “Holding this case in abeyance pending completion of the reconsideration process, which is expected to conclude by March 2013, is the efficient and logical course of action here. It will allow EPA to address, in the first instance, New Unit Developers’ concerns that the new source standards are overly stringent and cannot be achieved in practice, and may thereby obviate the need for the Court to adjudicate any challenge to the new source standards. Any revised standards that result from the reconsideration process will be subject to judicial review based on a new administrative record, which would render the litigation of New Unit Developers’ challenges to the current standards a waste of time and resources for both the parties and the Court.”
On Aug. 20, the New Unit Developers objected to any abatement of the court schedule for this case. “EPA attempts to justify abatement—and to convince the Court that it is not merely seeking to avoid meaningful judicial review of its challenged rule—by claiming that it did not ‘unilaterally’ decide to reconsider, but rather ‘granted reconsideration at the express request of one of the New Source Developers.’ EPA’s new argument is disingenuous at best.”
The plaintiffs added: “Whether and when to reconsider its new-source standards has always been within EPA’s unilateral control. EPA could have moved expeditiously to correct obvious errors in the rule, which are pointed out in the numerous petitions for reconsideration that EPA received. Or EPA could have eliminated the need to litigate challenges to its admittedly flawed rule by asking that the new-source standards be vacated and remanded, as EPA has frequently done in other cases and as this Court’s precedent encourages. Having refused to do either of those things, it is EPA—and EPA alone—that has made this proceeding necessary. Its abatement motion is nothing more than an attempt to avoid defending what it knows to be indefensible, disguised as plea to judicial economy.”
The plaintiffs argued that given EPA’s history of non-compliance with rule deadlines and its refusal to commit formally to any deadline in this case, EPA should not be permitted to avoid review. EPA is offering nothing more than its “naked and unconvincing assurance” that it almost certainly will take action in the near future, the plaintiffs said. “This is particularly true when, as here, the pendency of this litigation appears to be the only thing that has prompted EPA to take any action at all,” they added.