The Supreme Court is scheduled to hear oral arguments on Wednesday on a case that will decide the immediate future of mercury and arsenic pollution in the United States.
The case, Michigan v. Environmental Protection Agency, surrounds the legality of a rule that would for the first time limit heavy metal pollution from oil- and coal-fired power plants. The EPA has been trying to implement a rule like this for more than two decades. If all goes well for the agency, the Mercury and Air Toxics Standard will finally go into effect this spring.
But if all does not go well for the EPA, the much-anticipated rule will go back to the drawing board. Power plants will continue being allowed to emit unlimited amounts of mercury, arsenic, chromium, and other toxins until another EPA rule goes through the regulatory approval process, which often takes years.
“[A ruling against the EPA] would set back the regulations a lot,” said Jim Pew, an attorney at the environmental law firm Earthjustice. “It would be another chance for the industry to delay things and try to stop [EPA] politically, which is what they’ve been trying to do for 20 years.”
Right now, coal and oil-fired power plants have no requirements to limit their toxic metal emissions. As a result, they are the largest industrial source of toxic air pollution in the country. Coal plants, for example, are responsible for 50 percent of all U.S. emissions of mercury, a neurotoxin particularly dangerous to unborn children. Other toxic metals emitted from power plants, such as arsenic, chromium, and nickel, can cause cancer.
If and when the EPA’s rule is implemented, the agency estimates that up to 11,000 premature deaths would be prevented every year; that IQ loss to children exposed to mercury in the womb would be reduced; and that there would be annual monetized benefits of between $37 billion and $90 billion.
At the core of the lawsuit’s legal argument, however, is not health — it’s cost. Brought by the state of Michigan and 19 other Republican-led states, it argues that the EPA didn’t consider how much it would cost the power industry before it decided to issue limits on mercury and arsenic.
Under the Clean Air Act, the agency is only allowed to regulate pollutants when “appropriate and necessary.” In the eyes of the plaintiffs, a $9.6 billion yearly price tag is not appropriate.
“Congress did not intend for EPA to act with deliberate indifference to cost when answering the basic regulatory question whether it is appropriate to regulate,” the plaintiffs’ brief reads.
It is true that the EPA does not consider cost when it initially decides to issue a regulation on a specific category of pollutant. The only thing it considers in those first stages is whether the pollutant poses a threat to human health and the environment.
However, the EPA does consider cost in the later stages of Clean Air Act regulation — when it is deciding what the specific limits should be. When the EPA issued the estimated $9.6 billion yearly price tag for the proposed rule, it justified the cost by estimating a $37 billion to $90 billion yearly benefit.
Interestingly enough, the lawsuit does not cite those benefits, which include the prevention of up to 4,700 heart attacks and 130,000 asthma attacks every year, via both a reduction in heavy metals and particulate matter pollution. Instead, the lawsuit repeatedly asserts that the rule would only produce an estimated $4 to $6 million in health benefits every year. That figure represents the increase in earnings for people who would have lost I.Q. points because of exposure to mercury in their infancy and childhood.
In other words, the industry is arguing that the only benefit to reducing mercury and other heavy metal emissions from power plants would be an increase in the country’s cumulative I.Q. This argument, according to Pew, is disingenuous.
“Saying that’s the only benefit that the rule would confer is just absurd on a number of levels,” he told ThinkProgress. “That’s so deceptive. It’s an underestimate of an underestimate of an underestimate.”
In fact, it’s usually the EPA that underestimates the monetary benefits of its proposed pollution limits. According to The Economic Policy Institute, EPA estimates of past regulations have nearly always significantly overshot how much they actually cost American industry. At the same time, though, some have questioned the EPA’s estimates of benefits, saying the agency over-assumes how much fish pregnant women eat.
Either way, the Supreme Court’s decision may not depend on the reality of how much the regulation will cost. Instead, it may depend solely on whether it thinks the EPA needs to consider cost at the first step of issuing proposed rules, instead of later in the process. Usually, when language in a law is ambiguous — such as the Clean Air Act’s assertion that the EPA can regulate pollutants when “appropriate and necessary” — courts use 30-year-old legal precedent that says the interpretation is in the hands of the agency that enforces it.
The fact that the Supreme Court took up that question, however, means it may not be that simple.
“It will be interesting to hear what the justices have to say about deference,” Pew said. “I don’t know what to expect.”