Abby L. Harvey
GHG Monitor
7/17/2015
While the recent Supreme Court ruling against the Environmental Protection Agency’s Mercury and Air Toxic’s Standards (MATS) rule is unlikely to have any direct effect on the agency’s proposed carbon emissions standards for existing coal-fired power plants, it could strengthen opponents call for a stay pending review, a former EPA official told GHG Monitor last week. In the MATS ruling, the Supreme Court found that the EPA should have considered the cost of the rule when deciding to regulate. This is not an argument that would be relevant against the carbon regulations. “I do think that the case provides a very important example that will be effective when the states and the industries that challenge the Clean Power Plan ask the court to stay the rule,” Jeffery Holmstead, Former Assistant Administrator of Air and Radiation for the EPA, said. “MATS was not stayed pending review, so it was in effect and because the litigation took so long, most companies, something like 90 percent of all the coal-fired power plants in the United States, either installed controls or shut down. … So [opponents] will use MATS as kind of an example of how unfair it is to require people to go ahead and comply with a rule before the court gets a chance to say whether or not it’s legal.”
The Clean Power Plan, which is expected to be finalized in August, requires states to develop action plans to meet federally set carbon emission reduction goals. Opponents of the rule have argued that EPA has acted beyond their authority in the rule. Legal action has been taken against the proposed rule but any suits filed prior to the rule’s finalization are expected to be thrown out as generally legal action can only be taken against a final rule. When the rule is finalized it is expected to challenged, at which time opponents can request a stay for review, which would halt the rule until the court decided on its legality. While such stays happen “infrequently,” Holmstead said, the MATS ruling may have made it more likely that such a stay will be granted.
Ruling will have no direct impact on the Clean Power Plan
While the ruling may have a less direct effect on the Clean Power Plan, the rule is safe from any significant precedent set by the ruling. “The MATS decision should have no impact on the Clean Power Plan for a number of reasons. The first, it deals with an entirely different section of the Clean Air Act,” Richard Revesz, director of the Institute for Policy Integrity at NYU Law School, told GHG Monitor this week. “The second thing is that the MATS case tells us, at least in some cases when the statute’s ambiguous, EPA should take cost into account before making a decision on whether to regulate. For the Clean Power Plan, EPA has looked at the costs and has looked at the benefits and in fact, under that provision, EPA is required to look at costs, so it did, so there’s nothing that the MATS case would require EPA to do that EPA hasn’t already done,” Revesz said.
A similar statement was made by the EPA, stating that, “the Court’s conclusion that EPA must consider cost when determining whether it is ‘appropriate’ to regulate toxic air emissions from utilities will not impact the development of the Clean Power Plan under section 111. Cost is among the factors the Agency has long explicitly considered in setting standards under section 111 of the Act.”
Where Will the Justices Stand on the CPP?
The MATS ruling may also offer some insight into what a Supreme Court Case against the Clean Power Plan might look like Holmstead said. “I think it does show that there are at least five justices who are not going to just let EPA do whatever it wants to do,” Holmstead said. “So, If you are reading the tea leaves you’d have to say that the MATS case doesn’t bode well for the Clean Power Plan when that rule is challenged before the Supreme Court and I think most everybody believes that the Clean Power Plan will ultimately end up in the Supreme Court.”
