High court declines to block MATS until cost data complete

Sources such as the Washington Post and the Wall Street Journal reported March 4 that the U.S. Supreme Court through Chief Justice John Roberts has refused to block the Mercury and Air Toxics Standards (MATS) from the U.S. Environmental Protection Agency (EPA) until compliance cost data is complete.

In a simple order that gave no explanation, and acting without referring the issue to the full court, the chief justice rejected the plea of twenty states to block enforcement while EPA continues a study of the cost of the rule for power plants, according to Scotusblog, an online news service on the U.S. Supreme Court.

In the case of Michigan versus EPA (No. 14-46), the high court ruled last June that EPA could not impose that rule on the industry until it had first taken into account what the regulations would cost. 

That, the divided decision said, is a necessary part of any finding that regulation of power plant pollution was “appropriate and necessary” under the federal Clean Air Act. The 20 states, in their new application, argued that last term’s decision meant that EPA would have no authority to keep the rule intact until it completed the cost analysis (which EPA has told the court should be completed by April 15).

Last December, the U.S. Court of Appeals for the District of Columbia Circuit had ruled that EPA need not stop enforcement while the new cost review goes forward. It sent the case back to the agency to work on that. The states opposed to the rule then took their complaint on to the Supreme Court.

Under the rules of the court, the states could take their request for delay to another member of the court, but that maneuver seldom is successful. To head off just such a maneuver, individual Justices these days routinely share a stay application with their colleagues. It was Roberts’s option whether to do that, and he chose not to do so, Scotusblog reported.

By simply denying a stay request, the chief justice took no position on how the EPA’s rule would fare after the cost study is finished.

Senator Barbara Boxer (D-Calif.), Ranking Member of the Environment and Public Works Committee praised the action by the Supreme Court. “It is a great relief that the Supreme Court decided that we can protect our families from the dangers of mercury and other harmful toxins that are emitted from power plants,” Boxer said in a statement.

Some EPA critics in the power sector had hoped that the Supreme Court might hold up the MATS rule given its Feb. 9 ruling to stay the EPA’s controversial Clean Power Plan to cut CO2 emissions until the issue is litigated by the D.C. Circuit.

NMA says it’s important to look at bigger picture

"The issue of whether EPA has adequately complied with the law by properly assessing the costs of the rule – as they were told to do on remand – could still be litigated," National Mining Association (NMA) spokesperson Luke Popovich told GenerationHub.

"In any event, the real significance of MATS in general to us is how it illustrates EPA’s contempt for the costs of its rulings – or whether they’re even lawful. Recall that when the Court remanded the rule demanding EPA consider the costs, the agency’s response was: so what, the rule caused all these plants to close anyway. And of course as EIA confirmed later, EPA understated the estimated impact on coal capacity retirements from the rule by a whopping factor of 8 to 9," the NMA representative said.

About Wayne Barber 4201 Articles
Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 20 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants. Wayne can be reached at wayneb@pennwell.com.