Mercury and Air Toxins Standard

From Midwest Energy News: Q&A with Howard Learner on Recent EPA Clean Air Cases

Reposted from Midwest Energy News. Original available at http://www.midwestenergynews.com/2013/12/13/qa-reading-the-tea-leaves-as-epa-rules-go-to-court/

Q&A: Reading the tea leaves as EPA rules go to court

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Howard Learner is the executive director of the Environmental Law & Policy Center in Chicago.

Howard Learner is the executive director of the Environmental Law & Policy Center in Chicago.

This week the U.S. Supreme Court heardoral arguments regarding the Cross-State Air Pollution Rule (CSAPR), which was struck down by a 2-1 decision by a panel of the U.S. Court of Appeals for the District of Columbia Circuit last year.

Two judges had ruled that the U.S. Environmental Protection Agency overstepped its bounds in ordering states to significantly reduce their air pollution because of the impact on neighboring states – namely the impact of Midwestern coal plant emissions on Eastern states. An evenly split 4-4 Supreme Court ruling on CSAPR – since Justice Samuel Alito recused himself – would mean the appeals court’s decision is upheld.

The CSAPR arguments are pegged to two joined cases filed against a Homer City, Pennsylvania coal plant owned by EME, the same parent company of Chicago’s now-closed coal plants. (See the Supreme Court blog’s coverage of the cases here.)

On the same day, the EPA defended its Mercury and Air Toxics Standards (MATS) in front of a three-judge panel in the U.S. Court of Appeals for the D.C. Circuit. The court is expected to look more favorably on the MATS rule than it did upon CSAPR last year, and a decision is expected within several months.

We talked with Howard Learner, executive director of the Environmental Law and Policy Center, about the significance of the arguments and his predictions about the outcome (the ELPC is a member of RE-AMP, which also publishes Midwest Energy News).

Midwest Energy News: How did you feel about the oral arguments on CSAPR, and how do you think the Supreme Court will ultimately rule?

Learner: Forecasting Supreme Court decisions based on oral arguments can be hazardous to one’s health, but there are some directional indications here in light of precedents and the overall case before the court. I think the Supreme Court Justices seemed to be impressed with the analogies that the deputy solicitor general was presenting on behalf of the EPA.

When we’re dealing with ozone problems in the eastern states and the physical reality that pollution moves across state lines, it is difficult to determine exactly how much of the pollution, for example, affecting New Jersey’s airshed came from New Jersey sources versus Ohio sources versus Missouri sources. The EPA came up with its reasoned judgment about how to allocate responsibility among the states. Supreme Court precedent has accorded the EPA considerable respect for and deference to its scientific and technical expertise and judgment.

Look for a potential 6-2 decision in which the Justices would uphold the EPA’s CSAPR standards, based on leanings from the Justices’ questions and case law precedents.

What do you think of the industry argument that under CSAPR an upwind state could be forced to reduce its emissions more than the amount it is contributing to downwind states?

The difficulty here is that we’re dealing with a physicality problem – pollution moves in the atmosphere and doesn’t stay strictly within state lines. Air over New Jersey is being affected by pollution from upwind states.

There’s no way to perfectly allocate responsibility for pollution among the states, and there are different reasonable approaches. The question isn’t whether the agency’s approach is perfect, it’s whether among competing approaches, the agency is within the zone of reasonableness.

Some of the Justices seemed to recognize that in order to protect public health, the EPA has to have some room to reasonably interpret broad statutory terms such as “substantial contribution.” There was an indication that at least a majority of the Justices seem to be viewing the agency’s approach to be within the zone of reasonableness.

Do you think cost should be considered in demanding emissions reductions from different states?

There’s no one-size-fits-all approach. Some parts of the Clean Air Act consider cost and some don’t. The section dealing with non-attainment for ozone transport and “substantial contribution” does include a benefit-cost element. By contrast, sections dealing with mercury and air toxics don’t really require consideration of costs.

The pre-eminent goal of the Clean Air Act is to protect public health and remove endangerments. In the parts of the Act dealing with toxic air emissions that have very serious impacts on public health, cost is not a pre-eminent consideration.

What the EPA is attempting to do is look to those places, such as ozone transport, where it’s most cost-effective to reduce emissions. So for those who are concerned with economics and cost, the EPA’s approach is very effective. Some of the states challenging the ozone transport rules are essentially arguing that cost should not be a pre-eminent part of the decision.

What do you think of the MATS hearing before the appeals court, and do you think the court will uphold that rule?

The MATS case is different than CSAPR. First of all it’s before the DC Circuit Court of Appeals, not the Supreme Court, and it has a cluttered history. The EPA went through an extensive notice and comment rule-making period, issuing a draft rule, getting comments from many groups and, indeed, after moving to finalize the rule, then took it back and tweaked it in early 2013 to adjust for some particular concerns raised by some industry groups.

Keep in mind that industry is divided on this one. Some companies that own coal plants are strongly opposing these standards. There are other energy companies that own coal plants that have already installed mercury pollution reduction equipment and they’d like to see a level playing field of everyone complying so they don’t face a competitive disadvantage. The natural gas and nuclear industry have generally been supportive of the MATS as they see a competitive advantage to be gained.

There comes a time for finality, predictability and consistency for how mercury and other air toxic pollution are to be reduced by coal plants and others by installing modern pollution control technologies. The mercury standards have been battered about for a number of years. The EPA has devoted considerable scientific and technical analysis to these public health rules.

The challenges brought by industry are somewhat arcane. The fact is some of the critics don’t want the rules altogether, while some others want them tweaked or skewed in their favor.

The Supreme Court’s opinion in American Electric Power vs. Connecticut (2009) recognizes the EPA’s scientific and technical expertise to which courts should defer in reasonable cases. Reading the tea leaves here and reading what was said in oral arguments, there seems to be at least some inclination among the judges on the D.C. Circuit that they recognize that this mercury pollution standards case is appropriate for deferring to the agency’s expertise.

If MATS and CSAPR are upheld, what will that mean for coal plants in the Midwest?

If the CSAPR and MATS standards are upheld by the courts, that will clearly force many Midwestern coal plant owners to invest in more modern pollution control equipment and further retrofit their plants in order to achieve cleaner air. That will affect the ongoing economic viability of some of the coal plants in the highly competitive power markets in the Midwest. Some of the owners will choose to invest in modern pollution control equipment and be part of the solution, and some will choose to shut down the plants because of the market economics — they’ll conclude it’s not worth throwing good money after bad.

For many years, these older coal plants have been shifting costs onto the public in terms of their pollution and resulting harmful public health and environmental impacts. The coal plant owners have been externalizing their costs onto the public. The Clean Air Act implementation standards will force polluters to internalize their costs and reduce the shifting of pollution costs to the public.

What does the situation with MATS and CSAPR say about the regulatory and political climate now compared to the Bush years when the predecessor to CSAPR was struck down by the D.C. Circuit federal appeals court because it was too lenient?

There have been attempts in Congress by some to improve the Clean Air Act standards and others to weaken its standards. Since 1990, however, the Act has not been amended in any serious way.

We live in a divided country when it comes to overheated partisan politics. President Obama was elected by a significant margin in 2012, and elections have consequences. During the campaign, some industry opponents blasted President Obama for his so-called “war on coal” – a misnomer – but they lost.

The EPA is now moving forward with long-delayed Clean Air Act standards that were called for by legislation passed by Congress in 1977 and 1990. The courts will, hopefully, now confirm the EPA’s authority to issue these standards.

How would CSAPR and MATS play out in Illinois, given that Illinois has its own rules and agreements with the major power companies mandating stricter reductions in mercury and other pollutants?

While Illinois’ mercury pollution reduction standards have been implemented, in some cases the federal standards might cover specific additional toxics emissions beyond mercury. Illinois was a leader in adopting mercury pollution reductions in 2006 and 2007, these are helping achieve significant public health benefits and cleaner rivers and Great Lakes.

However, Midwest Generation and Ameren (now Dynegy) have been given waivers of part of Illinois clean air interstate standards for sulfur dioxide and nitrogen oxide. The implementation of CSAPR is thus very important.

What will happen if the Supreme Court does not reinstate CSAPR?

Until CSAPR is reinstated in some form, then the Clean Air Interstate Rule (the Bush-era standards) will continue to apply. Presumably if the Supreme Court were to uphold the (appeals court decision shooting down CSAPR), it would do it in a way that provides guidance to the EPA. The Court would say what’s wrong here and needs to be fixed.

How would you feel if that happened?

There really does come a time for predictability and finality.

The Clean Air Act was passed by Congress many years ago, and its implementation has been long delayed while public health harms continue. Sooner or later these public health protections should be moved forward.

This transcript was lightly edited for clarity and brevity.

From Reuters: EPA Tells Court U.S. Mercury, Toxics Rule is Legally Justified

EPA Tells Court U.S. Mercury, Toxics Rule is Legally Justified

ELPC’s Howard Learner on Importance of MATS Case

BY VALERIE VOLCOVICI

WASHINGTON — (Reuters) The U.S. environmental regulator argued in court on Tuesday that its rule limiting mercury and hazardous air pollutants is “appropriate and necessary,” not an improper interpretation of the federal Clean Air Act as industry groups and some states contend.

The U.S. Court of Appeals for the District of Columbia Circuit, the second most powerful court in the country behind the Supreme Court, heard two cases challenging the Environmental Protection Agency’s first rules to crack down on mercury from the country’s fleet of electric generating units.

The EPA’s Mercury and Air Toxics Standard (MATS) applies to 1,400 of the country’s largest power plants and would come into force in 2015, or in some cases, 2016.

The MATS rule was finalized in December 2011 but has been subject to several petitions for reconsideration from groups ranging from pollution control equipment vendors to power plant developers. The EPA has said that MATS could prevent up to 11,000 premature deaths, and generate $90 billion in health benefits, each year.

The three-judge panel asked a number of detailed questions to the dozen or so lawyers representing the EPA, green groups, the energy industry and states. The judges appeared skeptical of industry’s argument that the agency did not take the proper steps to determine that it was “appropriate and necessary” to regulate those pollutants.

Neil Gordon, Assistant Attorney General for the state of Michigan, which opposes MATS, said the EPA’s interpretation of the word “appropriate” was unlawful since the agency did not weigh regulatory costs in its decision to regulate the pollutants.

But Chief Judge Merrick Garland, a Democratic appointee, questioned Gordon’s argument, saying, “nowhere does Congress require (the EPA) to evaluate cost” in its determination for the need to curb mercury and other toxic substances to protect public health.

Arguments at the hearing, held even though the court was closed for a snow day in Washington DC, lasted nearly four hours. That was longer than planned and longer than arguments in similar regulatory cases, observers said.

“The panel was well versed in the case and thoroughly read the briefing. The questions were really probing around the salient issues,” said John Suttles, a lawyer for the Southern Environmental Law Center who represented the American Lung Association as an environmental intervener in the case.

He said the EPA made a strong case that it was within its rights in regulating the pollutants and that he “didn’t really see an indication that court disagreed with EPA.”

But Eric Groten, an industry lawyer specializing in the Clean Air Act for Vinson & Elkins, said he would be surprised if the MATS was affirmed in its entirety.

“There were so many issues argued that it increases the chance the EPA got something wrong,” he said.

Groten noted that some judges questioned whether the EPA “artificially skewed the data” used to set mercury limits by basing them on the best performing power plants rather than a wider sample.

The judges, which also included Democratic appointee Judith Rogers and Republican appointee Brett Kavanaugh, are expected to take a few months to deliberate and could reach a decision by February or March.

A conclusion to the case will end years of “pingponging” between the EPA and the DC Circuit court.

“If the EPA prevails in the MATS case, that moves this set of standards forward and brings finality, stability and predictability to the reduction of mercury and other air toxics for coal plants,” said Howard Learner, an attorney and executive director of the Environmental Law and Policy Center.

Coal industry groups said they hope that the DC Circuit and the Supreme Court, which heard another air pollution case Tuesday, strike down both laws, which they claim hurts jobs and the economy.

“EPA’s overreaching and overzealous rulemaking is crippling the nation’s coal-fueled electric sector and is a threat to our nation’s economy,” said Laura Sheehan, a spokeswoman for the American Coalition for Clean Coal Electricity.

(Reporting by Valerie Volcovici, editing by Ros Krasny and David Gregorio)

Crain’s Detroit Business Covers Michigan Scientists Letter on Mercury

Jay Greene of Crain’s Detroit Business blogs about the recent letter to Congress from Michigan Scientists.

Some 117 scientists and researchers from 11 universities and colleges in Michigan have penned a letter to the state’s 17-member congressional delegation urging them to prevent proposed legislation that could reverse tough new regulations on mercury emissions and other air toxins adopted last December by the U.S. Environmental Protection Agency.

The federal Mercury and Air Toxics Standard will help “protect and clean the air we breathe, assure that local fish are safer to eat, and protect and preserve the wildlife and natural spaces we love from harmful pollution originating in Michigan and elsewhere,” said the April 5 letter signed by the Michigan university professors and researchers. To read, click here.

Read the blog.

Michigan Scientists Urge Congress to Support Clean Air

For Immediate Release

April 5, 2012

CONTACT: STEPHANIE CEPAK (517) 333-1606

 

Michigan Scientists Urge Congress to Support Clean Air

117 college scientists, researchers back E.P.A.’s mercury rule

 

ANN ARBOR – University and college scientists and researchers have signed a letter calling on Michigan’s congressional delegation to support the Mercury and Air Toxics Standard (MATS) recently filed by the U.S. Environmental Protection Agency.

The scientists and researchers, 117 in total, represent a broad range of academic backgrounds and work at private and public colleges across Michigan.

“Humans and wildlife that eat fish can be exposed to hazardous levels of methyl mercury. Because residents of Michigan and the rest of the country are exposed to this pollutant, there needs to be a federal control on the emissions of mercury,” said Joel Blum, John D MacArthur Professor of Earth and Environmental Sciences at the University of Michigan.

The future of Michigan’s own mercury emissions rule is unclear because a state advisory committee recommended rescinding it once a federal rule is filed. The scientists support the Michigan rule, but know it doesn’t go far enough to protect the health and well-being of residents.

“As part of a team of researchers, I have found mercury remains a major pollutant of concern in the Great Lakes,” said Nil Basu, Assistant Professor in U-M’s Department of Environmental Health Sciences, School of Public Health. “All of us have detectable levels of mercury in our body.”

Much of the mercury deposited in Michigan comes from coal-fired power plants in other states, which is why a federal standard is even more crucial to protecting the public health of Michigan families. For every

$1 spent on reducing toxic emissions by upgrading power plants, the EPA estimates there is $6 to $9 in economic benefits, mostly related to lowered health care costs.

“State fish advisories like Michigan’s promote a policy that allows significant mercury contamination to remain in place while relying on the vulnerable populations to change their fish-consumption behavior,”

said Jerome Nriagu, Professor in U-M’s Department of Environmental Health Sciences, School of Public Health. “The regulators are helping to perpetuate an unequal burden of mercury exposure in communities of the Great Lakes.”

Altogether, signers included nearly 60 scientists and researchers from the University of Michigan and more than a dozen from Michigan State University. Signers also included scientists and researchers from Wayne State University, Hope College, Western Michigan University, Kalamazoo College, Eastern Michigan University, Calvin College, Michigan Technological University, Grand Valley State University, and Ferris State University.

Blum, Basu and Nriagu participated in a statewide telephone news conference Thursday discussing the letter, along with Howard Learner, Executive Director of the Environmental Law and Policy Center.

The letter was delivered this week to Michigan’s two U.S. Senators and 15 U.S. Representatives. The letter is below.

 

Our Letter to Michigan’s Congressional Delegation Dear Michigan Senators and Representatives:

As university and college scientists and educators living and working in the great state of Michigan, we commend the standards adopted by the U.S. Environmental Protection Agency imposing limits on mercury emissions and other hazardous air toxics. The federal Mercury and Air Toxics Standard (MATS) will help protect and clean the air we breathe, assure that local fish are safer to eat, and protect and preserve the wildlife and natural spaces we love from harmful pollution originating in Michigan and elsewhere. Scientific studies clearly demonstrate that mercury and other air toxic emissions are hazardous to human health. We are concerned that some Members of Congress are seeking to overturn, weaken or delay these vitally needed standards.  We urge you to vote against any action diminishing the U.S. EPA’s MATS.

Mercury and other air toxics covered by MATS are potent neurotoxins that impact the health of humans, wildlife and ecosystems (e.g. services, provisioning, etc.). Our children are most vulnerable to these impacts, with fetal exposures to mercury resulting in deleterious impacts to language, memory, visual-motor skills, and attention. In adults, exposure to mercury can damage the nervous system, with newer research showing possible impacts on the immune and cardiovascular systems. Most of mercury’s harms to human health come from consuming contaminated fish. Once deposited on the surface waters of our state, mercury is converted to methylmercury where it is consumed and biomagnified up the food chain.

Ecologically-relevant and sub-lethal concentrations of methylmercury can affect the growth, survival and reproduction of fish, birds, and other animals. Large predatory fish, particularly those found in Michigan’s inland waters such as walleye, northern pike and largemouth bass, are most vulnerable to these effects. Recreational anglers and their families, including tribal groups and others consuming these fish, can accumulate harmful amounts of methylmercury. There is also increasing and compelling evidence that mercury deposition can impact the terrestrial ecosystem, namely songbirds, bats, and other insectivores.

Michiganders have long understood the harms to public health caused by mercury and other air toxics. Reflecting the findings of scientists, the Michigan state government has taken some helpful actions. The Michigan Department of Community Health, Michigan Department of Environmental Quality and Michigan Department of Natural Resources have collaborated in issuing statewide fish advisories for every lake in Michigan.

Moreover, the Michigan Department of Environmental Quality adopted rules going into effect in 2015 to reduce mercury emissions from coal-fired power plants in our state.  We commend the state’s actions and urge the Michigan Congressional Delegation to understand the need for federal standards to reduce mercury and air toxics pollution from power plants nationwide.

These efforts in our state fall short of addressing sources of mercury and other air toxics from other states that also harm Michigan’s people and animals. Most (greater than 50%) of the mercury deposited in our state comes from coal-fired power plant emissions, with a substantial amount coming from coal-fired power plants in other states. The U.S.

EPA’s MATS provides an important path to protecting the air and water in our state by limiting the emissions from these coal-fired power plants in Michigan and beyond. Also, the federal standards address a wider range of toxic emissions and facilities in Michigan than the state standards. The U.S. EPA estimates that annually MATS will prevent hundreds of deaths in our state and result in over one billion dollars of health benefits to Michiganders.

We, Michigan university and college scientists, urge you to support U.S.

EPA’s Mercury and Air Toxics Standards in the interests of improving public health, protecting wildlife, preserving natural beauty, and supporting the economy of the state we call home.

Sincerely,

 Joel Blum, Professor- UM Department of Earth and Environmental Sciences

Nil Basu, Assistant Professor- UM School of Public Health, Department of Environmental Health Sciences

Timothy Dvonch,  Assistant Professor- UM School of Public Health, Department of Environmental Health Sciences

Howard Hu, Professor – UM School of Public Health, Department of Environmental Health, Epidemiology and Internal Medicine

Jerome Nriagu, Professor- UM School of Public Health, Department of Environmental Health Sciences