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23 states ask Supreme Court to overturn ruling upholding EPA Utility MACT rule

From the July 17, 2014 issue of Public Power Daily

Originally published July 17, 2014

A coalition of 23 states has petitioned the Supreme Court to reverse an appeals court decision that upheld the Environmental Protection Agency’s mercury and air toxics rule (known as the MATS or Utility MACT rule). In a July 14 petition for review, the 23 states said EPA erred in determining that its decision to regulate certain electric utility emissions "can be based solely on health or environmental risks, with absolutely no consideration of costs, even though the statute requires both a study to evaluate health risks (not environmental ones) and separate consideration of whether the regulation would be ‘appropriate and necessary.’"

The question for the Supreme Court is whether "EPA's interpretation of 'appropriate' is unreasonable because it refused to consider a key factor (costs) when determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities," the petition said. A majority of a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit held that "appropriate" as used in Section 112 of the Clean Air Act is ambiguous. EPA reasonably interpreted it to mean the agency was not required to consider costs and could analyze only public health hazards and environmental risks when deciding whether regulating utilities was appropriate, the majority opinion said.

Michigan and the other states pointed to a dissent by Judge Brett Kavanaugh, who said it was "entirely unreasonable" for EPA to ignore costs, an "essential factor" in deciding whether a regulation is appropriate. EPA is not barred from considering costs "unless there is clear and unambiguous statutory language that precludes the agency from doing so," the states said. "Here, there is no clear statutory provision that precludes consideration of costs."

The Supreme Court should hear the appeal, the 23 states say, because of its importance. "It is not every day that a single lawsuit pits 23 States against 16 other States and the District of Columbia, with officials from still another State on both sides of the case." The case also involves a significant amount of money—an estimated $9.6 billion annually, they said.

The petition for a writ of certiorari is posted online.


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Meena Dayak

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