May it Sleaze the Court

Twenty-five years ago, Congress asked the U.S. Environmental Protection Agency to study whether mercury emissions from power plants harmed human health. The agency’s research showed that they do. So 15 years ago, the EPA announced plans to issue regulations. Those rules are set to take effect in April. The process has been open, orderly, and effective. This week, however, the Supreme Court will hear a case that could reverse a quarter-century’s worth of research and deliberation on a technicality.

Here’s the issue. The EPA must balance the cost of new regulations against their potential benefits. The question isn’t whether the pros (healthy people and economic savings) of the mercury rules outweigh the cons (the price of reducing emissions)—a 2011 analysis proved that they do. It’s whether the EPA considered costs and benefits at the right moment in the process.

Why does that matter? According to the agency’s analysis, cutting mercury alone isn’t a great deal, financially speaking. Mercury scrubbers cost a few billion dollars and only save a few million in health care costs down the line. The thing is, when you filter mercury out of smokestack pollution, you also remove particulate matter—tiny bits that can clog up our lungs and cause a variety of serious respiratory ailments. Preventing those illnesses could save as much as $90 billion annually, which far exceeds the cost of installing the pollution guards. The EPA calls this a “co-benefit” of mercury regulation.

Great news, right? You get two health benefits for the price of one. Well, some utilities aren’t so thrilled. If the EPA had examined the costs of mercury regulation before it thought about particulate matter, they argue, it might have decided not to bother with issuing the rules. Put simply, the utility industry believes the EPA considered too much information when it conducted its cost-benefit analysis.

Cases like these test my faith in our legal system. Blocking a regulation that would indisputably save us money and protect our health because the government didn’t consider costs at the right moment belongs in a Charles Dickens novel, not in a 21st-century republic.

Let’s be absolutely clear: No one is fighting this regulation on principle. The group of utilities that challenged the EPA could not care less about the niceties of statutory interpretation. They care about their money. They own a bunch of coal-fired power plants that are too old and dirty to bring into compliance. If the utilities can stall the regulation for a few more years—or, even better, until a more sympathetic president takes office—they could squeeze a few more dollars out of their investments.

Meanwhile, pollution from those plants would continue to damage human health and the environment. The concentration of mercury in the oceans has tripled since the beginning of the Industrial Revolution, and power plants are a significant source. Mercury levels in yellowfin tuna have increased 3.8 percent annually over the past 17 years. Consumption of mercury is dangerous to pregnant women, fetuses, and young children, and several studies suggest it is associated with reduced attention span, IQ, motor coordination, memory, and language skills.

As for particulate matter, the new rules, according to the EPA, could prevent as many as 11,000 premature deaths and save 540,000 lost workdays. Children who suffer from asthma would benefit the most, with fewer attacks and missed days of school.

“Until these standards were finalized, there were no national-scale rules limiting toxic air pollution from power plants,” says Emily Davis, an attorney in NRDC’s clean air program (disclosure). “We’ve waited almost twenty years for these health standards.”

To think that people might die and children get sick because of something so ludicrously beside the point as the timing—not the results—of a cost-benefit analysis is repulsive. A handful of utilities want the Supreme Court to play what amounts to a game of Simon Says. Hopefully, all nine justices will see through the ploy.

“Even the conservative justices who are skeptical of the EPA might think the appeal is much ado about nothing,” says Erik Jaffe, a Washington appellate attorney who filed a brief on behalf of businesses that manufacture emissions control equipment. “The EPA took costs into account.”

The utilities challenging the rule are also hypocritical. Corporate leaders, and especially energy executives, constantly beg for “regulatory certainty.” It’s one of their favorite phrases. A Royal Dutch Shell executive in 2013 said what the company most needed was “clarity on the rules of the game.” Shale gas executives once spent most of a conference complaining about regulatory uncertainty. The Edison Electric Institute, an industry association, entitled an entire report “Adequate Returns and Regulatory Certainty Are Key.” I could go on.

The mercury emissions standards set to take effect next month are the result of a 25-year research process. No one can say they didn’t see them coming. Some utilities, commendably, took the opportunity to bring their plants into compliance. If others had done the same, everyone would have the regulatory certainty they claim to crave.

Instead, a group of utilities decided to fight the rules on a technicality, and even convinced their supporters in state governments to plead their case. It proves what we all knew: They’re full of it. They don’t want regulatory certainty. They want to make their own rules.