Four weeks ago, in a highly unusual 5-4 ruling, the Supreme Court imposed a stay on the Clean Power Plan, temporarily blocking progress on the Obama administration’s landmark climate legislation. Now, the tide appears to be turning in the highest court in the land.
Last week, in two fairly controversial moves, the Court appeared to warm up to environmental interests — garnering praise from green groups and plenty of grumbling from trade organizations. On Thursday, Chief Justice John Roberts refused to block an Environmental Protection Agency regulation that limits mercury and other pollutants from coal-fired power plants. Three days earlier, the Court denied agricultural trade groups’ challenge to a “pollution diet” for the Chesapeake Bay.
Chesapeake Bay plan stays intact
In 2010, the EPA published the “total maximum daily load” of nitrogen, phosphorous and sediment that can be released into the Chesapeake Bay, the largest estuary in North America. Agricultural trade groups, including the American Farm Bureau Federation, sued the EPA over the plan a year later, saying the agency exceeded its power under the Clean Water Act.
A federal appeals court ruled in favor of the EPA last year. And on Leap Day, the Supreme Court refused to hear a challenge to the ruling, meaning the pollution limits will stand.
The SCOTUS opt-out is a big win for the seven states — Virginia, West Virginia, Maryland, Delaware, Pennsylvania, New York and the District of Columbia — that have, as the appellate court put it, “engaged in a decades-long process to develop a plan to improve the quality of the water in the Chesapeake Bay.” It could also be a good sign for the EPA more generally and its efforts to limit water pollution. But agriculture and business groups told the Baltimore Sun they “fear it could set a precedent that gives the EPA extensive power over state and local land use,” reported staffer Scott Dance.
“This could be a major hardship,” Mark O’Neill, a spokesman for the Pennsylvania Farm Bureau, which joined the American Farm Bureau Federation in its challenge of the plan, told the paper. “This could have a major impact on the future of farming in the watershed.”
SCOTUS refuses to block mercury regulations
To clarify, the Clean Power Plan — which was updated and strengthened in August of last year — seeks to limit greenhouse gas emissions from new and existing power plants. The latest rule to come under review, the EPA’s Mercury and Air Toxics Standards, relates specifically to mercury and other highly-toxic air pollutants created from burning coal.
Last year in a 5-4 decision, the Supreme Court voted that the mercury standards were illegal, saying the EPA failed to adequately consider the cost of compliance for utilities, and sent it back to the D.C. Circuit Court for review (PDF). The D.C. court unanimously rejected requests for a stay in December while it reviewed the Supreme Court’s concerns, Environmental Leader reported.
Last week, when the rule came up for another SCOTUS review while the EPA continues its cost-benefit analysis, a group of 20 state attorneys general led by Michigan rallied to ask for a stay. Fifteen states, along with groups like the Environmental Defense Fund and American Lung Association, opposed the stay application, EL reported.
“By rejecting the states’ request for stay, rather than taking the application to the full court, Roberts likely avoided a 4-4 split,” due to the vacancy on the Court left by late Justice Antonin Scalia, inferred EL staffer Jessica Lyons Hardcastle. Both Roberts and Scalia voted in favor of the Clean Power Plan stay in February.
The Court’s decision on the Clean Power Plan likely left many hoping that it would be more open to temporarily blocking environmental regulations while they undergo updates and reviews. But Roberts’s decision indicates that lobbying interests may not be successful in further attempts to halt environmental rules while they are “still subject to legal challenges,” legal experts told the New York Times.
“This is a pretty strong way of sending a signal that the fact that the court granted a stay of the Clean Power Plan was highly extraordinary, and they don’t want to be inundated with these,” Jeffrey Holmstead, a lawyer with the firm Bracewell and a deputy administrator of the EPA in the George W. Bush administration, told the paper.
EPA spokeswoman Melissa Harrison told the Washington Post that the agency was “very pleased” with Roberts’s decision to let mercury restrictions remain in effect. Kevin M. Kennedy, deputy director of the World Resources Institute’s U.S. Climate Initiative, also praised the decision: “We’re pleased that this rule, which is so important for public health, will remain in place while the EPA addresses the concerns cited by the Supreme Court last June,” he told 3p in an email.
But the mercury emissions fight isn’t over — not by a long shot. In their Supreme Court brief, opposing states said blocking the mercury regulation “is even more warranted” than the halt to the Clean Power Plan, because the Court already decided the agency had exceeded its authority by failing to consider cost, the New York Times reported.
But experts including Holmstead told the paper that blocking the mercury rule would have little practical impact, because most electric utilities have already put it into effect.
The EPA estimates that the standards could prevent up to 11,000 premature deaths each year, and pegs the annual value for people’s health at $37 billion to $90 billion. It will cost utilities around $9.6 billion annually to clean up or close coal-fired power plants in compliance with the standards, and experts told the New York Times that at least 100 coal plants have already been shuttered as a result of the rule.
The EPA expects to complete its cost-benefit analysis by mid-April. The rule will then go before the D.C. court for a third time. And, despite the fact that most utilities have already adapted, fossil fuel interests — and their supporters in government — may try to make another run at the Supreme Court if they don’t receive a favorable ruling.
We’ll keep an eye on this and other crucial environmental cases as they make their way through the courts. But one thing is for certain: The high court’s role in upholding environmental regulation is far from neutered, even as the presidential primaries heat up and Republicans in the Senate Judiciary Committee vow to deny a replacement for Scalia until after the election.