Jus­tices block EPA rules

High court says ef­forts to limit power plant emis­sions must also con­sider the costs.

Los Angeles Times - - BUSINESS - By David G. Sav­age

WASHINGTON — The Supreme Court dealt a blow to the Obama ad­min­is­tra­tion’s en­vi­ron­men­tal plans, de­cid­ing that ef­forts to sharply limit haz­ardous power plant emis­sions must also con­sider their costs.

In a 5- 4 de­ci­sion Mon­day, the jus­tices said the En­vi­ron­men­tal Pro­tec­tion Agency needs to weigh the eco­nomic im­pact of pro­posed reg­u­la­tions — es­ti­mated at $ 9.6 bil­lion an­nu­ally — on power com­pa­nies and their cus­tomers.

The de­ci­sion marks a vic­tory for the coal and power in­dus­tries as well as a coali­tion of Repub­li­can- led states that had sued to block the new rules.

The Na­tional Assn. of Man­u­fac­tur­ers wel­comed the de­ci­sion, say­ing ag­gres­sive reg­u­la­tions place U. S. com­pa­nies at a disad­van­tage. “We need a bal­anced ap­proach to reg­u­la­tions that con­sid­ers both costs and ben­e­fits,” said Linda Kelly, its gen­eral coun­sel.

En­vi­ron­men­tal­ists were dis­ap­pointed but de­scribed the rul­ing as more of a de­lay than a de­feat.

“The court has sided with the Dirty Delin­quents — the small per­cent­age of coalf ired plants that haven’t cleaned up — and against the ma­jor­ity that are al­ready pro­tect­ing our chil­dren from mer­cury and other toxic pol­lu­tants,” said Fred Krupp, pres­i­dent of the En­vi­ron­men­tal De­fense Fund.

The “mer­cury and air tox­ins” rule has been 25 years in the mak­ing. Congress in 1990 strength­ened the Clean Air Act and told the EPA to iden­tify the ma­jor sources for more than 180 haz­ardous air pol­lu­tants, in-

clud­ing mer­cury and ar­senic. The agency iden­ti­fied coal- and oil- f ired plants, set­ting the stage for tougher reg­u­la­tions.

The rules took far longer than law­mak­ers had an­tic­i­pated. The Clin­ton ad­min­is­tra­tion com­pleted the study and pre­pared the rules, but they were blocked dur­ing the Ge­orge W. Bush ad­min­is­tra­tion. Un­der Pres­i­dent Obama, the EPA is­sued pro­posed reg­u­la­tions in 2012 that were to take full ef­fect this sum­mer.

A U. S. ap­peals court up­held the rules last year, but to the sur­prise of en­vi­ron­men­tal­ists, the Supreme Court agreed to hear the in­dus­try’s ap­peal. The high court’s in­ter­ven­tion came just as many in Washington, in­clud­ing con­gres­sional Repub­li­cans, were com­plain­ing that Pres­i­dent Obama and his ad­min­is­tra­tion were ex­ceed­ing their le­gal au­thor­ity.

Jus­tice An­tonin Scalia said the reg­u­la­tions were not rea­son­able be­cause the EPA had not weighed costs from the be­gin­ning. The agency fo­cused on the im­pact to the public’s health and “con­sid­ered cost ir­rel­e­vant,” he said. Chief Jus­tice John G. Roberts Jr. and Jus­tices An­thony M. Kennedy, Clarence Thomas and Sa­muel A. Al­ito Jr. agreed in Michigan vs. EPA.

In dis­sent, Jus­tice Elena Ka­gan ac­cused the ma­jor­ity of “mi­cro­man­age­ment of EPA’s rule- mak­ing.” The law spoke only of “ap­pro­pri­ate” reg­u­la­tions, she said.

It is not en­tirely clear what the EPA will do now. The gov­ern­ment’s lawyers told the court that the public ben­e­fits of cleaner air would be more than $ 37 bil­lion, far ex­ceed­ing the cost.

The agency has said the new rules would save as many as 11,000 lives per year. Mer­cury is highly toxic in the air and the wa­ter, and it builds up through the food chain. It is par­tic­u­larly dan­ger­ous for a preg­nant woman and her de­vel­op­ing baby. Other toxic pol­lu­tants are be­lieved to trig­ger asthma at­tacks.

The de­ci­sion “over­turns one of EPA’s most im­por­tant pol­lu­tion con­trol rules,” said Har­vard law pro­fes­sor Richard Lazarus, an ex­pert on en­vi­ron­men­tal law. “The good news is that EPA can likely go back and reis­sue the same rule, this time tak­ing costs into ac­count. The bad news is that this may take a long time to ac­com­plish. The Obama ad­min­is­tra­tion will be hard- pressed to get the job done be­fore it goes out of of­fice.”

The de­ci­sion could also af­fect Obama’s plans to com­bat cli­mate change, which in­clude rules that would re­quire a 30% re­duc­tion in car­bon pol­lu­tion by 2030

White House Press Sec­re­tary Josh Earnest said the ad­min­is­tra­tion was dis­ap­pointed with Mon­day’s Supreme Court de­ci­sion, but said it should not get in the way of other plans. “These are two sep­a­rate rule- mak­ing pro­cesses,” he said.

Sen. Bar­bara Boxer ( DCalif.), who sits on the Se­nate’s En­vi­ron­ment and Public Works Com­mit­tee, said the court de­ci­sion does not ques­tion the abil­ity of the EPA to reg­u­late pol­lu­tion. She urged the agency to move quickly to in­cor­po­rate a cost anal­y­sis of the pro­posed reg­u­la­tions.

The Supreme Court’s de­ci­sion, how­ever, “doesn’t re­ally mat­ter in Cal­i­for­nia,” said Jan Smutny- Jones, chief ex­ec­u­tive of the In­de­pen­dent Energy Pro­duc­ers Assn. in Sacra­mento. That’s be­cause the state has moved quickly to wean it­self off of lo­cally pro­duced fos­sil fu­els.

Five years ago, Cal­i­for­nia de­rived about 16% of its power from coal, with a “very small amount” pro­duced within the state by mi­nor pro­duc­ers, Smutny- Jones said. “Those have all gone away or are in the process of go­ing away, hav­ing con- verted to biomass or shut­ting down,” he said. “What­ever gen­er­a­tion in- state there was is ef­fec­tively gone.”

Most util­i­ties in Cal­i­for­nia have com­mit­ted to aban­don­ing coal from out- of­s­tate sources as well. Oth­ers — such as the Los An­ge­les Depart­ment of Wa­ter and Power and smaller. util­i­ties cov­er­ing Ana­heim, River­side, Pasadena, Bur­bank and Glendale — are “ne­go­ti­at­ing an exit strat­egy” from out- of- state im­porters, ac­cord­ing to the Sierra Club.

“It is very promis­ing that Cal­i­for­nia will be truly coal­free by 2025,” said Marta Stoep­ker, a spokes­woman for the Sierra Club’s South­west Re­gion.

Na­tion­wide, only a few dozen coal plants con­tinue to op­er­ate with­out plans to in­stall pol­lu­tion con­trols for mer­cury and air tox­ins, said Mary Anne Hitt, di­rec­tor of the Sierra Club’s Be­yond Coal Cam­paign.

“Prac­ti­cally speak­ing, to­day’s de­ci­sion won’t re­vive the for­tunes of Big Coal or slow down our na­tion’s tran­si­tion to clean energy,” she said. “How­ever, this f lawed de­ci­sion does raise con­cerns for our chil­dren and preg­nant women, as util­i­ties may fur­ther de­lay com­pli­ance de­ci­sions, or use this as an ex­cuse to refuse to run their pol­lu­tion con­trols.”

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