The Environmental Protection agency may be headed into federal court to once again defend its controversial mercury rule from a legal challenge — being brought, this time, by the coal company Murray Energy.
Murray Energy sued EPA over its mercury rule for power plants the day it was published in the Federal Register and after the agency had been working for a year to get the rule back on the books after it was struck down by the Supreme Court in June. In that case, a coalition of states and industry groups sued the EPA over its mercury rule.
“This final ‘finding’ is flagrantly arbitrary, and fails to comply with the law and with the Supreme Court’s mandate,” Murray Energy said in a statement to the West Virginia-based State Journal.
Murray, which is run by Bob Murray, filed suit in federal court Monday. The coal company argues the EPA is trying to work around the Supreme Court’s rejection of the so-called Mercury and Air Toxics Standards, or MATS — a regulation slated to cost nearly $10 billion.
EPA reissued the rule Monday, giving the public 60 days to comment on its supposedly new findings, and the regulation went into effect earlier this month. Now, EPA may have to wade into another lengthy court battle over whether or not the new MATS rule is legal.
“Indeed, the Obama EPA plainly refuses to consider the costs of its decision in light of the reasonable and available alternatives to inflexible and cost-blind federal standards that Murray Energy identified in its comments,” the company said. “This is a fatal error that will require the Courts to strike down this finding.”
MATS, originally imposed in 2012, requires power plants to reduce mercury emissions, but from the beginning it was criticized because of its high cost and low benefits. EPA estimated MATS to cost $9.6 billion and shutter coal-fired power plants across the country, but the agency also claimed the public health benefits outweighed the costs.
But only a fraction of those public health benefits came from reducing mercury, the rest came from reducing a pollutant called fine particulate matter, or PM2.5. In fact, the cost of MATS outweighed the benefits from mercury reductions more than 1,600-1.
“These benefits are so miniscule because they are based on a population that almost assuredly doesn’t exist,” William Yeatman, a senior fellow at the free market Competitive Enterprise Institute, said in an emailed statement in December.
“According to the EPA, the MATS rule is necessary in order to protect a supposed population of pregnant subsistence fisherwomen, who during their pregnancies eat hundreds of pounds of self-caught fish from America’s most polluted bodies of fresh inland water,” Yeatman said.
In June, the Supreme Court ruled against EPA and forced the agency to go back to the drawing board on MATS. Former Supreme Court Justice Antonin Scalia wrote that “[no] regulation is ‘appropriate’ if it does significantly more harm than good.”
“The Agency must consider cost—including, most importantly, cost of compliance—before deciding whether regulation is appropriate and necessary,” Scalia wrote. “We need not and do not hold that the law unambiguously required the Agency, when making this preliminary estimate, to conduct a formal cost-benefit analysis in which each advantage and disadvantage is assigned a monetary value.”
Scalia sent the rule back to a lower court where it was upheld because so many coal plants had been forced to spend millions of dollars on upgrades to cut mercury emissions.
“EPA is very pleased with the court’s decision to leave the Mercury and Air Toxics Standards (MATS) in place,” EPA spokeswoman Melissa Harrison said in an emailed statement in December.
“These practical and achievable standards are already cutting pollution from power plants that will save thousands of lives each year and prevent heart and asthma attacks,” Harrison said. “The standards also slash emissions of the neurotoxin mercury, which can impair children’s ability to learn. All told, for every dollar spent to make these cuts in emissions, the public is receiving up to $9 in health benefits. A majority of power plants have already installed and are operating the controls needed to meet MATS and the rest will be doing so in April 2016.”
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