September 17, 2019

September 16, 2019

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Supreme Court Reverses and Remands MATS to D.C. Circuit for EPA Failure to Consider Costs

In a 5 to 4 split decision, the U.S. Supreme Court ruled on Monday, June 28th, that the U.S. Environmental Protection Agency (“EPA”) unreasonably interpreted the federal Clean Air Act (“CAA”) when EPA decided deemed that costs were irrelevant in deciding whether to regulate hazardous air emissions from electric utility sources under section 112 of the CAA.  Michigan v. EPA, No. 14-46 (U.S. June 28, 2015): SCOTUS MATS Decision The majority opinion was authored by Justice Scalia and was joined by the Chief Justice and Justices Thomas, Kennedy, and Alito.  Specifically at issue was whether the EPA was required by section 112(n)(1), 42 U.S.C. § 7412(n)(1), to consider compliance costs in determining that it was “appropriate and necessary” to regulate toxic air emissions from fossil fuel-fired utilities. Due to issues such as grid reliability, Congress did not initially list electric utilities as a source category to be regulated under the air toxics provisions of the 1990 CAA amendments.  Instead, Congress ordered EPA to study the hazards to public health that could reasonably anticipated to occur as a result of such emissions and then to regulate electric utilities if it found that regulation was “appropriate and necessary” after performing the study.

In addressing the question of whether regulation was appropriate and necessary, EPA focused only on health impacts and did not consider compliance costs.  The agency found that regulation was appropriate because the power plants’ emissions of mercury and other hazardous air pollutants posed risks to human health and the environment, and that controls were available to reduce these emissions.  In 2012, the EPA issued its final electric utility mercury and air toxics standards (“MATS”) rule.  A history of that rulemaking may be found here. EPA noted that during the rulemaking it did consider costs in deciding what level of emissions reduction should be achieved by the affected sources. Thus, EPA asserted that it had taken costs into account consistent with the statute’s requirements.

 The petitioners, which included Michigan and 20 other states as well as organizations such as the National Mining Association, argued that EPA was required to look at compliance costs in the study required by Congress before determining whether it was appropriate to proceed with setting any standards.  They noted that in the final rule EPA had estimated in its Regulatory Impacts Analysis (“RIA”) that the “annual social costs” (i.e., the compliance costs for electric utilities that would be borne by consumers) were $9.6 billion.  To the extent the agency could estimate the health benefits of the rule, it determined that they were from $4 to $6 million, although the agency said it could not fully quantify the benefits.  In other words, according to the RIA, the ratio of costs to benefits from reducing the hazardous air emissions was between 2,400 to 1 and 1,600 to 1, but EPA interpreted the CAA to allow it to find that even so, regulation of mercury emissions was “appropriate and necessary.”

The Court held that EPA’s interpretation of the statute was unreasonable and that the agency must consider compliance costs before deciding to regulate electric utilities as a source category under section 112.  The majority opinion reversed a prior decision of the U.S. Court of Appeals for the D.C. Circuit and remanded the matter to the D.C. Circuit for further proceedings.  In doing so, the Court expressly stated that EPA is not necessarily required to perform a formal cost-benefit analysis in deciding how costs should be factored into determining whether regulation is appropriate under section 112(n)(1).

 It is unclear how this decision might affect one of the arguments expected to be raised against the EPA’s  section 111(d) Clean Power Plan rule for electric utilities when it is finalized later this year.  The 111(d) rulemaking is designed to regulate emissions of greenhouse gases from existing fossil fuel-fired power plants. One of the issues regarding that rule, however, is whether section 111(d) applies to electric utilities at all.  This argument is based on the House  of Representatives version of section 111(d)(A)(i), which states that section 111(d) is inapplicable to  a source category which already is regulated under section 112.  Therefore, the effect of today’s opinion on EPA’s 111(d) rulemaking will become clearer after further proceedings on the MATS rule at the D.C. Circuit.

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About this Author

Michael Cooke, Greenberg Traurig Law Firm, Tampa, Energy and Environmental Law Attorney
Of Counsel

Michael G. Cooke concentrates his practice in administrative law, including environmental, utility, and land use law. He represents industrial, agricultural, banking, government, and developer clients on matters involving clean air, climate change, electric generating facilities, renewable energy, telecommunications, utility plant and transmission line siting, water, and wastewater issues. 

From 2003 to 2006, Michael was the Director of the Division of Air Resource Management for the Florida Department of Environmental Protection. In this...

Christopher Bell, Greenberg Traurig Law Firm, Houston, Washington DC, Environmental Law Litigation Attorney

Chris Bell represents clients in civil and criminal enforcement and investigations, litigation, compliance counseling, emergency incident response, and legislative and regulatory advocacy (including appellate challenges to rulemakings) under all of the major environmental, health, safety and natural resource laws. His enforcement experience includes internal investigations, responding to grand jury investigations and agency information requests, and negotiating consent, probation, and debarment agreements. He is currently the EPA Independent Monitor overseeing the nation’s largest investor-owned energy company’s compliance with complex debarment and probation agreements arising from the resolution of criminal enforcement case brought under the Clean Water Act.

Chris assists buyers, sellers, investors and financial institutions on the environmental aspects of transactions, including conducting due diligence, negotiating the environmental provisions of transactional documents, and identifying and executing insurance-based risk management opportunities. His transactional experience has included upstream, midstream and downstream energy projects, alternative energy projects, and transactions in the manufacturing, logistics, consumer products and chemicals sectors.