Supreme Court shoots down EPA power plant rules
By Todd Spangler, Detroit Free Press 5:40 p.m. EDT June 29, 2015
Supreme Court clean air
WASHINGTON – After a series of landmark Supreme Court victories for the Obama administration last week, the White House took one on the chin Monday, losing a Michigan-led challenge to federal rules for coal- and oil-fired power plants.
The U.S. Supreme Court ruled in favor of the state of Michigan's challenge to federal environmental rules regarding mercury and other emissions from power plants, saying the EPA must take costs into account when deciding if such rules are appropriate and necessary.
The court split 5-4 in favor of the challenge of the rules, in which Michigan and 22 other states argued that the costs of the regulations to power plants could be $9.6-billion a year, forcing some out of business or to pass on rate increases to customers, despite providing only $4- to $6-million in "quantifiable benefits" from reducing emissions.
The ruling left in place the U.S. Environmental Protection Agency's authority to set regulations on mercury from power plants, but could force the agency to take extra steps to analyze costs versus the benefits before following through with those rules, which have already taken effect.
"The Supreme Court upheld a fundamental precept of smart regulation today -- that a rigorous cost-benefit analysis is a necessary component of any major regulatory proposal," said John Engler, a former Michigan governor and president of the Business Roundtable, a group of officials from major U.S. corporations. "The ruling establishes an important and valuable precedent."
Environmentalists decried the ruling, even though it could have a limited impact since many power plants across the U.S. have been making changes to meet the standards for some time and are unlikely to reverse course now -- DTE Energy among them.
"We are already taking steps to be in compliance," said Skiles Boyd, DTE Energy's vice president for environmental management and resources. "All of our plants will meet the standards by April 2016."
Boyd also noted that, in Michigan, state regulations on mercury similar to the EPA's would be put in place automatically if EPA's rules were turned back.
It wasn't immediately clear, however, if the Supreme Court's decision, which remanded the case to the D.C. Circuit Court of Appeals, meant the agency's rule-making process would have to go back to the beginning or if EPA could simply provide an acceptable cost-benefit analysis to satisfy the court and keep the existing rules in place.
Michigan's rules on mercury took into account costs, as well as what technology was available to meet the new standards, according to officials at the state Department of Environmental Quality (DEQ). Boyd also noted that the court's decision won't cause it to reconsider closing two coal-fired units in Trenton by the end of next year.
The EPA argued in court that the ancillary health and environmental benefits were far greater than the $4- to $6-million in direct annual benefits from the rules, but acknowledged those additional benefits had no role in its reaching the decision to regulate mercury and certain other hazardous air pollutants under the Clean Air Act in the first place.
Instead, the agency said it was under no obligation to consider costs in making the initial decisions whether to regulate hazardous mercury emissions from coal-fired power plants, though it considered costs in setting the standards themselves.
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State Attorney General Bill Schuette, whose office argued the case before the court, called the decision a "victory for family budgets and job creation in Michigan."
"The court agreed that we can and must find a constructive balance in protecting the environment and continuing Michigan's economic comeback," he said.
Justice Antonin Scalia wrote for the court, saying the EPA's action was "unlawful" if it does not rest on a consideration of all the relevant factors, including cost.
"'Appropriate and necessary' is a capacious phrase. Read naturally against the backdrop of established administrative law, this phrase plainly encompasses cost," Scalia wrote. "It is not rational, never mind 'appropriate,' to impose billions of dollars in economic cost in return for a few dollars in health or environmental benefits."
The decision represented a loss for President Barack Obama's administration and its regulatory agenda, which had hoped to make moves to curtail power plant emissions a centerpiece of its environmental agenda. It was something of a turnaround for the White House, which last week won decisions from the court on consecutive days supporting the administration's stance on health care subsidies and same-sex marriage.
Scalia said it is still up to the EPA and not the court to determine how costs should be considered in deciding to regulate mercury and other emissions, however.
"We are reviewing the decision and will determine any appropriate next steps once our review is complete," said agency Press Secretary Melissa Harrison. "EPA is disappointed that the court did not uphold the rule, but this rule was issued more than three years ago, investments have been made and most plants are already well on their way to compliance."
In Michigan, the DEQ said last week that more than a dozen requests for year-long extensions to comply with the regulations -- which went into effect in April -- were granted, in several cases because the facilities were either in the process of shutting down or switching to natural gas as their fuel.
Extensions were granted at DTE facilities in southeastern Michigan, including River Rouge, Trenton Channel, Belle River, St. Clair, Wyandotte and Monroe -- which in some cases were closing units and, at others, needed extra time to install the necessary equipment.
While the ruling may have limited effect in Michigan, in other states, it could result in some plants which could have been forced to close because they were unable to meet the new standards being able to stay open -- at least for now.
"This important decision was the right one and underscores that agencies do not have unlimited authority to impose excessive costs on the American public. Unfortunately, this ruling comes after the rule has already taken a toll, with a number of power plants shuttered and many jobs lost because of the EPA's unlawful action," said U.S. House Energy and Commerce Committee Chairman Fred Upton, R-St. Joseph, in a statement with Energy and Power Subcommittee Chairman Ed Whitfield, R-Ky.
Upton and Whitfield said Monday's ruling underscores the need for more limits to be placed on EPA's rule-making abilities. The U.S. House last week passed legislation which would delay implementation of EPA carbon dioxide standards on state electricity systems, though that still has to be considered in the Senate where it could face a tougher chance of passage.
Meanwhile, Earthjustice, an environmental law organization, decried Monday's ruling, saying, as written, the regulations would "save between 4,000 and 11,000 lives each year by substantially reducing pollution from the dirtiest plants."
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The group, however, argued that since EPA already has looked at the benefits of the rules, it should be able to "provide the cost analysis required by the court in short order" and keep them in place.
"Thankfully, today's ruling by the court provides a clear path forward for the U.S. Environmental Protection Agency to limit mercury and other dangerous pollution," said Jack Schmitt, deputy director of the Michigan League of Conservation voters, who added that he thought the decision was "disappointing."
Chief Justice John Roberts and justices Anthony Kennedy, Clarence Thomas and Samuel Alito joined in Scalia's decision. Justice Elena Kagen wrote a dissenting opinion, with Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor joining.
Kagan called the majority's ruling a decision that "deprives the agency of the latitude Congress gave it to design an emissions-setting process sensibly accounting for costs and benefits alike" and one that "deprives the American public of the pollution control measures that the responsible agency, acting well within its delegated authority, found would save many, many lives."
By Todd Spangler, Detroit Free Press 5:40 p.m. EDT June 29, 2015
Supreme Court clean air
WASHINGTON – After a series of landmark Supreme Court victories for the Obama administration last week, the White House took one on the chin Monday, losing a Michigan-led challenge to federal rules for coal- and oil-fired power plants.
The U.S. Supreme Court ruled in favor of the state of Michigan's challenge to federal environmental rules regarding mercury and other emissions from power plants, saying the EPA must take costs into account when deciding if such rules are appropriate and necessary.
The court split 5-4 in favor of the challenge of the rules, in which Michigan and 22 other states argued that the costs of the regulations to power plants could be $9.6-billion a year, forcing some out of business or to pass on rate increases to customers, despite providing only $4- to $6-million in "quantifiable benefits" from reducing emissions.
The ruling left in place the U.S. Environmental Protection Agency's authority to set regulations on mercury from power plants, but could force the agency to take extra steps to analyze costs versus the benefits before following through with those rules, which have already taken effect.
"The Supreme Court upheld a fundamental precept of smart regulation today -- that a rigorous cost-benefit analysis is a necessary component of any major regulatory proposal," said John Engler, a former Michigan governor and president of the Business Roundtable, a group of officials from major U.S. corporations. "The ruling establishes an important and valuable precedent."
Environmentalists decried the ruling, even though it could have a limited impact since many power plants across the U.S. have been making changes to meet the standards for some time and are unlikely to reverse course now -- DTE Energy among them.
"We are already taking steps to be in compliance," said Skiles Boyd, DTE Energy's vice president for environmental management and resources. "All of our plants will meet the standards by April 2016."
Boyd also noted that, in Michigan, state regulations on mercury similar to the EPA's would be put in place automatically if EPA's rules were turned back.
It wasn't immediately clear, however, if the Supreme Court's decision, which remanded the case to the D.C. Circuit Court of Appeals, meant the agency's rule-making process would have to go back to the beginning or if EPA could simply provide an acceptable cost-benefit analysis to satisfy the court and keep the existing rules in place.
Michigan's rules on mercury took into account costs, as well as what technology was available to meet the new standards, according to officials at the state Department of Environmental Quality (DEQ). Boyd also noted that the court's decision won't cause it to reconsider closing two coal-fired units in Trenton by the end of next year.
The EPA argued in court that the ancillary health and environmental benefits were far greater than the $4- to $6-million in direct annual benefits from the rules, but acknowledged those additional benefits had no role in its reaching the decision to regulate mercury and certain other hazardous air pollutants under the Clean Air Act in the first place.
Instead, the agency said it was under no obligation to consider costs in making the initial decisions whether to regulate hazardous mercury emissions from coal-fired power plants, though it considered costs in setting the standards themselves.
DETROIT FREE PRESS
Michigan challenge of air pollution rules heads to court
State Attorney General Bill Schuette, whose office argued the case before the court, called the decision a "victory for family budgets and job creation in Michigan."
"The court agreed that we can and must find a constructive balance in protecting the environment and continuing Michigan's economic comeback," he said.
Justice Antonin Scalia wrote for the court, saying the EPA's action was "unlawful" if it does not rest on a consideration of all the relevant factors, including cost.
"'Appropriate and necessary' is a capacious phrase. Read naturally against the backdrop of established administrative law, this phrase plainly encompasses cost," Scalia wrote. "It is not rational, never mind 'appropriate,' to impose billions of dollars in economic cost in return for a few dollars in health or environmental benefits."
The decision represented a loss for President Barack Obama's administration and its regulatory agenda, which had hoped to make moves to curtail power plant emissions a centerpiece of its environmental agenda. It was something of a turnaround for the White House, which last week won decisions from the court on consecutive days supporting the administration's stance on health care subsidies and same-sex marriage.
Scalia said it is still up to the EPA and not the court to determine how costs should be considered in deciding to regulate mercury and other emissions, however.
"We are reviewing the decision and will determine any appropriate next steps once our review is complete," said agency Press Secretary Melissa Harrison. "EPA is disappointed that the court did not uphold the rule, but this rule was issued more than three years ago, investments have been made and most plants are already well on their way to compliance."
In Michigan, the DEQ said last week that more than a dozen requests for year-long extensions to comply with the regulations -- which went into effect in April -- were granted, in several cases because the facilities were either in the process of shutting down or switching to natural gas as their fuel.
Extensions were granted at DTE facilities in southeastern Michigan, including River Rouge, Trenton Channel, Belle River, St. Clair, Wyandotte and Monroe -- which in some cases were closing units and, at others, needed extra time to install the necessary equipment.
While the ruling may have limited effect in Michigan, in other states, it could result in some plants which could have been forced to close because they were unable to meet the new standards being able to stay open -- at least for now.
"This important decision was the right one and underscores that agencies do not have unlimited authority to impose excessive costs on the American public. Unfortunately, this ruling comes after the rule has already taken a toll, with a number of power plants shuttered and many jobs lost because of the EPA's unlawful action," said U.S. House Energy and Commerce Committee Chairman Fred Upton, R-St. Joseph, in a statement with Energy and Power Subcommittee Chairman Ed Whitfield, R-Ky.
Upton and Whitfield said Monday's ruling underscores the need for more limits to be placed on EPA's rule-making abilities. The U.S. House last week passed legislation which would delay implementation of EPA carbon dioxide standards on state electricity systems, though that still has to be considered in the Senate where it could face a tougher chance of passage.
Meanwhile, Earthjustice, an environmental law organization, decried Monday's ruling, saying, as written, the regulations would "save between 4,000 and 11,000 lives each year by substantially reducing pollution from the dirtiest plants."
DETROIT FREE PRESS
Supreme Court refuses to ban controversial method of execution
The group, however, argued that since EPA already has looked at the benefits of the rules, it should be able to "provide the cost analysis required by the court in short order" and keep them in place.
"Thankfully, today's ruling by the court provides a clear path forward for the U.S. Environmental Protection Agency to limit mercury and other dangerous pollution," said Jack Schmitt, deputy director of the Michigan League of Conservation voters, who added that he thought the decision was "disappointing."
Chief Justice John Roberts and justices Anthony Kennedy, Clarence Thomas and Samuel Alito joined in Scalia's decision. Justice Elena Kagen wrote a dissenting opinion, with Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor joining.
Kagan called the majority's ruling a decision that "deprives the agency of the latitude Congress gave it to design an emissions-setting process sensibly accounting for costs and benefits alike" and one that "deprives the American public of the pollution control measures that the responsible agency, acting well within its delegated authority, found would save many, many lives."
