States Just Asked The Supreme Court To Halt Another Pollution Rule

More than a dozen states have advisories on eating fish from rivers, streams, and lakes, due to mercury contamination. CREDIT: AP PHOTO/CHARLIE NEIBERGALL
More than a dozen states have advisories on eating fish from rivers, streams, and lakes, due to mercury contamination. CREDIT: AP PHOTO/CHARLIE NEIBERGALL

If you live in one of these 20 states — Alabama, Alaska, Arizona, Arkansas, Idaho, Iowa, Kansas, Kentucky, Michigan, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, Texas, Utah, West Virginia, or Wyoming — your attorney general just asked Justice John Roberts to let power plants keep putting mercury in the environment.

In a petition filed Tuesday, those states asked the Supreme Court to stay the Mercury Air Toxics Standard, which was issued by the EPA in 2014 and has been bouncing around the courts ever since.

The standard, commonly known as MATS, was the culmination of more than two decades of effort to limit the amount of mercury from coal-fired power plants. Methylmercury, the compound that comes from power plants, is a powerful neurotoxin that can affect coordination, impair speech and hearing, cause muscle weakness, and degrade vision. Exposure to methylmercury in utero and for infants and small children can have significant long term health impacts, including cognitive and fine motor impairments.

But in June, the Supreme Court ruled that the EPA had not properly considered the regulation’s cost to industry, and kicked the rule back to the D.C. Circuit Court. The EPA is expected to submit new cost analysis to the court in April, but in the meantime, the rule is still in effect.


Apparently unwilling to wait for a final ruling from the D.C. Circuit Court, the states, led by Michigan, are looking to put the rule on hold immediately. They were bolstered, perhaps, by recent Supreme Court actions. Last month, the court issued a stay on the Clean Power Plan, the EPA’s carbon-limit rule.

“Unless this court stays or enjoins further operation of the Mercury and Air Toxics rule, this court’s recent decision in Michigan v. EPA will be thwarted,” the states wrote, according to The Hill. “A stay or injunction is appropriate because this court has already held that the finding on which the rule rests in unlawful and beyond EPA’s statutory authority.”

In fact, the court found that the rule failed to adequately address costs. And the EPA did consider costs in the rulemaking process — the Court ruled that agency should have considered cost to industry before it decided whether to craft the regulations. Recent research has found that the healthcare cost savings of the rule are “easily in the tens of billions.”

Tuesday’s petition was sent directly to Justice Roberts, who is responsible for handling this type of request. Roberts has the option of ruling unilaterally — which could be subject to appeal — or putting the decision to the bench. Legal experts said it was unlikely that Roberts would rule independently, and with an 8-person bench, it would be nearly impossible for the states to win their petition.

Neither the EPA nor the Michigan attorney general’s office responded Wednesday to a request for comment.

Michigan is just one of more than a dozen states with fish advisories due to mercury contamination.