On Wednesday, March 25, the Supreme Court will hear arguments in Michigan et al. v. EPA et al., in which a handful of states, together with the National Mining Association and some industry representatives, challenge the Mercury and Air Toxics Standards issued by the Environmental Protection Agency.
The standards limit emissions of hazardous air pollutants—air toxics, such as mercury, arsenic and acid gases—from coal- and oil-fired power plants under section 7412 of the Clean Air Act. Most industrial sources of such toxics are automatically subject to regulation under section 7412, and have already reduced their emissions to comply with the law. But electric utilities secured a special exemption from Congress: before issuing those regulations, EPA was required to prepare a study of the “hazards to public health reasonably anticipated to result” from power plants’ toxic emissions after imposition of the Clean Air Act’s other requirements, and determine whether it was “appropriate and necessary” to regulate those emissions.
EPA completed the required study in 1998, and twice found it “appropriate and necessary” to regulate coal- and oil-fired power plants—once in 2000, and again in 2012 (in between, George W. Bush’s EPA unsuccessfully tried to undo the first of those findings).
On both occasions, EPA found overwhelming evidence that power plants endangered public health, and that the Act’s other programs would not mitigate that danger. Coal-fired plants’ mercury emissions, in particular, have effectively poisoned many of the nation’s bodies of water; all fifty states have issued mercury-related health advisories against consuming fish caught in their lakes and streams. Mercury is a potent neurotoxin, especially dangerous to children and pregnant women. Prenatal exposure to mercury results in impaired attention, loss of fine-motor function, as well as reduced language skills and verbal memory, substantially limiting children’s ability to learn and achieve. These harms are widespread; each year, several hundred thousand children are born in the United States who have been exposed to unsafe mercury levels in utero. EPA found that other toxics emitted by power plants—poisonous metals such as arsenic and chromium, and acid gases such as hydrochloric and hydrofluoric acid—also create serious threats to surrounding communities. And it found that power plants—coal-fired plants especially—are the largest source of mercury, arsenic, and other air toxics in the United States.
Because power plants’ air toxics pose a hazard to public health (as well as related harms to the environment), and because other provisions of the Clean Air Act would not address that hazard, EPA found that it was “appropriate and necessary” to regulate power plants.
The petitioners contend that the agency was also required to consider the costs of regulation to industry. According to the petitioners, EPA produced a regulation that costs industry $9.6 billion, to achieve $4-6 million in benefits. A clear example of the job-killing EPA regulations that the coal industry and its allies have been warning us about, no?
Well, actually, no.
First, regarding those “$4-6 million” in benefits. This rule’s public health benefits are estimated to be worth as much as $90 billion. EPA estimated that, when they go into effect, the standards will prevent 11,000 premature deaths, as well as over 5,000 emergency room and hospital visits, and 130,000 cases of aggravated asthma each year. According to the economic review prepared for the White House’s Office of Information and Regulatory Affairs, the standards will produce health benefits worth more than $33-90 billion to the public, dwarfing their estimated cost of $9.6 billion to industry.
How do the petitioners shrink $33-90 billion to $4-6 million? First, they replace the actual consequences of the rule with a narrow slice of what they term legally “relevant” benefits: just those that EPA specifically attributed to reductions in mercury and other air toxics. But in order to reduce their emissions of air toxics, power plants must also reduce emissions of other pollutants. Toxic metals, for example, are part of the soot emerging from power plants’ smokestacks; to control those metals, the plants must reduce their soot pollution. Such reductions will create significant improvements in public health that extend beyond the neurological and cancer-related benefits of reducing air toxics. While the petitioners may deem them legally irrelevant, those benefits are real, and massively consequential; no sensible assessment of the standards’ results could ignore them. To adopt petitioners’ claim that EPA has produced an unreasonable regulation, the Court will have to adopt a decidedly unreasonable view of the rule’s costs and benefits.
And even as to the rule’s benefits specific to mercury and air toxics, no one, aside from the petitioners, suggests that they are worth a mere $4-6 million. That figure reflects only those mercury- and toxic-specific benefits of the rule that EPA could quantify and reduce to a dollar figure. But EPA made very clear that most of air toxics’ harms—such as the loss of unborn children’s mental and physical abilities—could not be quantified or monetized (nor, one imagines, might the public be comfortable with an agency purporting to affix a dollar figure to the value of their child’s intelligence).
Petitioners’ claim of a “cost blind” regulatory process tells a similarly incomplete story; just because EPA didn’t consider costs when making its threshold “necessary and appropriate” finding doesn’t mean the Agency ignored costs. After EPA decided that it was “necessary and appropriate” to regulate coal- and oil-fired power plants, EPA went on to decide how stringent those regulations should be, under the standard-setting criteria contained in the rest of section 7412. Those criteria are not cost-blind; they contain explicit instructions as to how and when EPA is to consider costs.
Section 7412 also limits EPA’s ability to expose the public to toxic pollution in order to spare industry’s pocketbook. EPA cannot, for example, set standards that demand less than what the cleanest currently operating plants are already achieving. Those limits reflect Congress’ judgment as to the grave public health harms posed by air toxics—such as cancer, and neurological damage to infants—and the regulatory burden appropriate to reduce those harms. The question, in other words, isn’t whether EPA was free to ignore costs; the agency addressed costs in the same manner as it has for every other industrial source of air toxics. Petitioners want EPA to ignore the conditions Congress placed on its consideration of costs, in favor of its own opinions as to what might be “appropriate”—something the agency properly refused to do.
Finally, a practical note. The standards become effective on April 16, 2015. Though some plants have obtained compliance extensions, most have adopted the controls necessary to meet the standards. According to the Energy Information Administration, by the end of 2012, 64 percent of the coal-fired power plants in the United States had already installed control equipment sufficient to comply with the standards. The results have hardly been catastrophic; in fact, the electric utilities sector has been growing as the compliance deadline gets closer (it has added over 5,000 jobs since October 2014). Whatever the Court decides, reality has passed its verdict: Big Coal’s claims of economically disastrous, job-killing EPA regulations have no basis in fact.
Sanjay Narayan is a managing attorney with the Sierra Club’s Environmental Law Program. He is one of the lawyers representing the respondents American Academy of Pediatrics, et al. in the case.