Energy Companies Urge Supreme Court to Block Stricter Rule on Power Plant Emissions

Piles of coal wait to be burned at PacifiCorp's Hunter power plant outside Castle Dale, Utah, on Nov. 14, 2019. George Frey/AFP via Getty Images

Energy companies and 23 states urged the Supreme Court on Sept. 18 to block a new federal regulation restricting pollutants emitted by coal-fired power plants.

The request was made days after the federal government asked the nation’s highest court to leave in place the rule imposing new, tougher limits under the Environmental Protection Agency’s (EPA) mercury and air toxics standards (MATS).

The companies originally filed the emergency application in the case known as NACCO Natural Resources Corporation v. EPA with the Supreme Court on Aug. 14.

In addition to Cleveland, Ohio-based NACCO, among the co-applicants are 23 states including Virginia, Utah, Texas, and North Dakota, along with 18 companies and associations, including Associated Electric Cooperative Inc., Luminant Generation Company LLC, and the National Mining Association.

On Aug. 6, the U.S. Court of Appeals for the District of Columbia Circuit denied the companies’ request to put the rule on hold, finding they did not satisfy “the stringent requirements for a stay pending court review.” The case remains pending in the circuit court.

The EPA rule establishes technology-based emissions standards for mercury and other hazardous pollutants released into the air by generating facilities with a capacity in excess of 25 megawatts. The government argues that the law requires EPA to impose the most stringent limits possible on emissions of pollutants covered under the MATS rule and that as technology improves to better capture pollutants, the emissions standards can be made tougher.

The MATS rule is responsible for “significant health and environmental benefits by reducing a broad range of hazardous air pollutants,” the agency said in July.

“By 2017 mercury emissions had dropped by 86 percent—down to approximately 4 tons. [Emissions of] Acid gas … and non-mercury metals are down 96 percent and 81 percent respectively when compared to 2010 levels.”

The government argues there is no reason to halt the regulation because the bulk of coal-fired power plants have already met the new EPA limits. Just two plants in the United States require major upgrades to come into compliance, according to the government.

But in the Sept. 18 filing, the companies and states argue that there is no reason to make the emissions standards tougher. Public health will not improve and the rule will unnecessarily impose significant costs, they say.

The brief states that EPA acknowledged in a regulatory impact analysis in April that “the current risks from these power-plant emissions are ‘below levels of concern from a public health standpoint.’”

“One might say: Mission accomplished! But not EPA. No, instead the agency now claims it is ‘necessary’ for power plants to slash their emissions by 67 percent or more, at a cost approaching $1 billion, ‘regardless of any residual risk to public health,’” the industry brief states.

U.S. Solicitor General Elizabeth Prelogar said in a brief filed on Sept. 13 that Section 7412 of the federal Clean Air Act requires EPA to impose tougher limits under the MATS rule.

Prelogar said the other side’s argument that the new regulation “arbitrarily and capriciously imposes massive costs for no meaningful benefit” is “incorrect.”

Their argument that the regulation “will produce no meaningful benefit rests on their view that, because EPA has determined that emissions of hazardous air pollutants from coal-fired power plants are already low enough to provide an ample margin of safety for public health (for example, because the cancer risk is less than one in one million), any further reduction in the plants’ hazardous-air-pollutant emissions is superfluous.”

The co-applicants “may disagree” with that policy choice to minimize public exposure to pollutants, but “that is no justification for declining to give effect to the statute Congress wrote,” Prelogar said.

The emergency application is pending before Chief Justice John Roberts. It is unclear when he will act.