Industry groups argue against MATS rule at U.S. Supreme Court

In writing the Mercury and Toxics Standards (MATS), due to take effect in April, the U.S. Environmental Protection Agency put together a rule that improperly imposes expensive air emissions controls for little economic benefit, said a Jan. 20 opening brief filed by the Utility Air Regulatory Group (UARG) at the U.S. Supreme Court.

“In the MATS Rule, the quantified costs of [hazardous air pollutant] regulation are more than one-thousand times greater than the quantified benefits: $9.6 billion versus $4 to $6 million,” said the UARG brief, filed on behalf of a number of power industry groups. “EPA says that Congress’ direction to regulate specific HAP emissions posing remaining ‘hazards to public health’ only if ‘appropriate and necessary’ authorizes the Agency to regulate, at enormous cost, HAP emissions that present only environmental risks or de minimis health hazards. That interpretation is as curious as it is wrong.”

UARG later added:”In this case, there is no dispute that the MATS Rule will impose billions of dollars of costs. In the face of these real-world realities, EPA’s bland assertion that ‘nothing about the definition [of ‘appropriate’] compels a consideration of costs,’ and that it was ‘appropriate to regulate EGUs under CAA section [74]12’ simply ‘because EPA has determined that HAP emissions from EGUs pose hazards to public health and the environment,’ is not only unreasonable, it borders on the irrational. Cost here is an ‘important aspect of the problem’ that EPA was required to consider in any exercise of reasoned decision-making.”

A panel at the U.S. Court of Appeals for the D.C. Circuit had in April 2014 upheld the MATS rule, with the power industry now appealing that ruling to the Supreme Court. UARG is an ad hoc, unincorporated association of individual electric generating companies and industry trade associations that participates on behalf of its members collectively in administrative proceedings under the Clean Air Act, and in litigation arising from those proceedings.

The National Mining Association, which represents major coal mining companies, said in its own Jan. 20 opening brief that the EPA cost-to-benefit ratio is illegal, adding: “EPA’s decision is so irrational that it can be explained only by the Agency’s desire to achieve what it calls the ‘co-benefit’ of coincidentally reducing other emissions that EPA is not authorized to regulate under Section 7412. EPA asserted that the value of these co-benefits exceeds the $9.6 billion in costs. But, at least for the purpose of defending its rule in court (if not in the court of public opinion), the Agency conceded that, consistent with Section 7412(n)(1)(A), it could not and hence did not consider these asserted non-HAP co-benefits in deciding to regulate. Unable to bootstrap these asserted co-benefits into a legal rationale, the Agency is left with a rule with massively disproportionate costs and benefits that can be justified only by arguing that Congress left it in EPA’s hands to decide whether or not to consider costs, regardless of how high those costs may be. EPA, however, cannot make the case that Congress delegated such enormous power to the Agency.”

The Supreme Court this past November agreed to hear oral arguments on whether the EPA “unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.” The high court on Nov. 25 granted “a writ of certiorari” to consider consolidated litigation involving several cases including Michigan v. EPA; the Utility Air Regulatory Group v. EPA and the National Mining Association v. EPA.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.