On November 25, 2014, the Supreme Court of the United States granted a petition to review three related cases regarding power plant emissions of mercury and other listed hazardous air pollutants. These cases have been consolidated for hearing to review the U.S. Court of Appeals for the D.C. Circuit’s ruling in White Stallion Energy Center, L.L.C. v. Environmental Protection Agency, 748 F.3d 1222 (D.C.Cir. 2014) wherein the D.C. Circuit upheld the electric utility steam generating units’ emission standards that the EPA promulgated in 2012 for mercury and other listed hazardous air pollutants.

The Supreme Court’s ruling on this issue will certainly affect the citizens of Louisiana. According to the EPA, there are fourteen power plants covered by this rule in parishes throughout the state including Orleans, Jefferson, St. Charles, St. Mary and Calcasieu. Further, the EPA states that the 2012 emissions standards will create up to $2.4 billion in health benefits in 2016 alone.

At issue in the consolidated cases is §112 of the Clean Air Act (CAA), enacted in 1970, which required EPA to promulgate emission standards to provide “‘an ample margin of safety to protect the public health’ for each listed hazardous air pollutant (HAP), unless EPA found that a particular listed substance was in fact not hazardous.” White Stallion Energy, 748 F.3d at 1230, citing §112(b)(1)(B. “Over the next eighteen years, EPA listed only eight HAPs, established standards for only seven, and as to these seven addressed only a limited selection of possible pollution sources.” Id.

As a result of this slow pace, in 1990 Congress amended the CAA by eliminating much of the EPA’s discretion. In the amended §112, Congress listed 189 HAPs that were to be regulated and directed EPA to publish a list of “categories and subcategories” of “major sources” and certain “area sources” that emit these pollutants. Id. For electric utility steam generating units (EGUs), Congress required that before any listing, EPA conduct a study of “the hazards to public health reasonably anticipated to occur as a result of [EGU HAP emissions] after imposition of the requirements of this Chapter….” Id. Further, Congress directed that, “The Administrator shall regulate [EGUs] under this section, if the Administrator finds such regulation is appropriate and necessary after considering the results of the study required by this subparagraph.” Id. at 1231.

EPA conducted the necessary studies and in 2000 concluded that, “the available information indicate[d] that mercury emissions from [EGUs] … are a threat to public health and the environment,” while acknowledging “uncertainties regarding the extent of the risks due to electric utility mercury emissions.” Id. (emphasis in original). Other emissions “of potential concern” were identified, namely arsenic, chromium, nickel, cadmium, dioxins, hydrogen chloride, and hydrogen fluoride. Id. Accordingly, in 2000, EPA determined that it was “appropriate” and “necessary” to regulate EGUs under §112 because of the health and environmental hazards posed by power plant emissions and the availability of control options to effectively reduce such emissions. Id. As a result, the EPA added EGUs to the list of source categories under §112(c) of the CAA. Id. at 1231-32. In 2012, EPA confirmed its 2000 Finding that the regulation of EGU emissions under §112 is “appropriate and necessary.” Id. at 1232.

Various state, industry and labor entities challenged the EPA’s 2012 interpretation and application of the §112 “appropriate and necessary” requirement and the EPA’s failure to consider the costs associated with its ruling. The D.C. Circuit upheld the EPA’s determination, inter alia, stating, “On its face, §112(n)(1)(A) neither requires EPA to consider costs nor prohibits EPA from doing so.” White Stallion Energy Center, 748 F.3d at 1237.

The challenges to the D.C. Court’s ruling, brought by the utility industry and nearly two dozen states, is based upon the EPA’s interpretation and application of the “appropriate and necessary” requirement in §112 of the CAA. The utilities and states argue that the EPA refused to consider costs when evaluating whether regulating EGUs is appropriate. They argue that these emission standards are part of one of the most expensive regulatory schemes ever and will cost $9.6 billion per year, and that the health benefits will be far lower.

According to the EPA, the standards at issue will slash emissions of these dangerous pollutants by relying on widely available, proven pollution controls that are already in use at more than half of the nation’s coal-fired power plants. www.epa.gov, EPA News Release, 12/21/11. Power plants are the largest remaining source of several toxic air pollutants, including mercury, arsenic, cyanide, and a range of other dangerous pollutants, and are responsible for half of the mercury and over 75 percent of the acid gas emissions in the United States. Id.

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