The EPA should account for all costs before making a ruling on mercury or other coal plant emissions, according to a 5:4 majority of the Supreme Court. The dissenting minority points out not only are costs usually figured in during the follow-on process for specific limits, but that actual costs can’t even be computed without knowing those limits. So Coal Plant Scherer mercury in the Alapaha River can’t be limited without figuring all the costs first, says the SCOTUS majority, although EPA and the Court minority point to numerous well-known medical problems caused by mercury. Are profits for a few big utilities and coal companies more important than clean water and public health, especially now that there are cleaner, safer, faster-to-build, and less expensive renewable energy sources available in solar and wind power?

According to today’s SCOTUS ruling,

It [the EPA] estimated, however, that the cost of its regulations to power plants would be $9.6 billion a year, but the quantifiable benefits from the resulting reduction in hazardous-air-pollutant emissions would be $4 to $6 million a year.

Brett Logiurato, Business Insider, 2015-06-29, The Supreme Court just handed Obama a significant loss on one of his biggest environmental initiatives,

But the EPA countered that the economic benefits could reach as much as $90 billion per year, based on health benefits and saved lives.

Later the majority opinion written by Antonin Scalia ignores such benefits and minimizes emissions costs even further:

It is not rational, never mind “appropriate,” to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.

Congress called for two additional studies. One of them, a study into mercury emissions from power plants and other sources, must consider “the health and environmental effects of such emissions, technologies which are available to control such emissions, and the costs of such technologies.”

Scalia emphasized cost related to that mercury study.

EPA emphasized environmental effects:

EPA considered environmental effects relevant to the appropriate-and-necessary finding. It deemed the mercury study’s reference to this factor “direct evidence that Congress was concerned with environmental effects.” 76 Fed. Reg. 24987.

In a dissenting opinion, Justice Elena Kagan noted that EPA did a study including mercury back in 1998:

…EPA determined, focusing especially on mercury, that the substances released from power plants cause substantial health harms. Noting that those plants are “the largest [non-natural] source of mercury emissions,” id., §1.2.5.1, at 1—7, EPA found that children of mothers exposed to high doses of mercury during pregnancy “have exhibited a variety of developmental neurological abnormalities,” including delayed walking and talking, altered muscles, and cerebral palsy. Id., §7.2.2, at 7—17 to 7—18; see also 7 EPA, Mercury Study Report to Congress, p. 6—31 (1997) (Mercury Study) (estimating that 7% of women of childbearing age are exposed to mercury in amounts exceeding a safe level).

Informed by its public health study and additional data, EPA found in 2000 that it is “appropriate and necessary” to regulate power plants’ em issions of mercury and other hazardous air pollutants. 65 Fed. Reg. 79830. 2 Pulling apart those two adjectives, the Agency first stated that such regulation is “appropriate” because those pollutants “present[ ] significant hazards to public health and the environment” and because “a number of control options” can “effectively reduce” their emission. Ibid. EPA then determined that regulation is “necessary” because other parts of the 1990 amendments—most notably, the acid rain provisions—“will not adequately address” those hazards. Ibid. In less bureaucratic terms, EPA decided that it made sense to kick off the regulatory process given that power plants’ emissions pose a serious health problem, that solutions to the problem are available, and that the problem will remain unless action is taken.

Later, Judge Kagan adds:

Still more, EPA could not have accurately assessed costs at the time of its “appropriate and necessary” finding. See 8 Mercury Study, at 6—2 (noting the “many uncertainties” in any early-stage analysis of pollution control costs). Under the statutory scheme, that finding comes before— years before—the Agency designs emissions standards. And until EPA knows what standards it will establish, it cannot know what costs they will impose. Nor can those standards even be reasonably guesstimated at such an early stage.

So the SCOTUS majority has handed EPA an impossible task. Or has it, now that solar power is taking off?

-jsq

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