Hold Your Breath: The Fight Over Clean Air Continues

By Matthew L. Mattila, J.D.

It’s no secret that the Environmental Protection Agency (EPA) is flexing its muscles under the Clean Air Act, with ever-increasing efforts to regulate pollution. It’s also no secret that industry groups and numerous states have vigorously opposed the regulations. But has a strategy of steady opposition backfired?

EPA opponents just scored a major victory at the U.S. Supreme Court, but it could undermine their larger efforts to undo EPA’s Clean Power Plan.

The Supreme Court rules against EPA

On June 29, the U.S. Supreme Court issued a long-awaited opinion in Michigan et al. v. EPA et al, where petitioners challenged EPA’s Mercury and Air Toxics Standards (MATS) rule. This rule, at its core, is EPA’s attempt to regulate mercury and other hazardous air pollutants (HAPs) from power plants pursuant to Section 112 of the Clean Air Act. The High Court found that EPA unreasonably deemed cost irrelevant to the initial decision to regulate.

Following this decision, the future of MATS is now uncertain. The rule could survive, since the Supreme Court did not vacate the rule and merely remanded the case to the D.C. Circuit, which will further evaluate the rule’s fate. In the meantime, until the agency appropriately considers cost, it seems EPA will not effectively be regulating power plants as a source of HAPs under Section 112 of the Clean Air Act.

Implications for EPA’s Clean Power Plan

The ongoing MATS battle could have larger implications for EPA’s Clean Power Plan, which is a draft rule EPA first proposed in June 2014 in direct response to President Barack Obama’s 2013 Climate Action Plan. The Clean Power Plan arises out of Section 111(d) of the Clean Air Act and tasks states with developing plans for reducing carbon pollution at existing power plants. This will likely promote diverse state regulations, ranging from stricter emission controls on coal-fired power plants to increased emphasis on clean energy alternatives and emissions trading programs.

Unsurprisingly, the Clean Power Plan is contentious because it shows an ambitious regulatory shift in energy policy that threatens to increase utility costs. Here, opponents even took the unusual step of challenging the draft rule prior to its finalization. The D.C. Circuit rejected procedural challenges in June, refusing to consider the legality of a proposed rule and leaving substantive arguments for a future date. EPA is widely expected to finalize the Clean Power Plan this summer and renewed legal challenges are imminent.

With the recent MATS decision, EPA opponents ironically may have undermined their ability to challenge the Clean Power Plan. A major argument against the Plan is that EPA should not be able to regulate carbon pollution at existing power plants under Section 111(d) of the Clean Air Act when the same source is already regulated under Section 112. This argument is based on the statutory text of Section 111 (or at least based on the House of Representatives’ version of the text), but it would be difficult to argue that power plants are sources regulated under Section 112 if MATS is no longer in play. By pushing to invalidate the MATS rule, EPA opponents have therefore made a stronger case for upholding the Clean Power Plan.

Looking ahead

Industry groups and states will continue to spar with EPA over carbon pollution, and the Agency will continue to test the limits of its authority, including through finalization of the Clean Power Plan in the coming months. Since the Plan can be legally challenged for reasons that do not depend on the existence of Section 112 regulations, it seems unlikely that state and industry groups will abandon the MATS fight anytime soon. Still, the litigation should be closely watched in light of the recent U.S. Supreme Court decision.

If EPA withdraws the MATS rule to further consider cost or if opponents resist potential withdrawal or vacatur of the rule, then this could signal larger uncertainty over the future of the Clean Power Plan. In the meantime, many will be watching, waiting and holding their breath.

Image credit: Flickr/Daniel Lerps

Matthew L. Mattila is an environmental attorney in Atlanta, Georgia and can be reached at mmattila@millermartin.com. This article is for general educational and informational purposes only. This article is not intended as legal advice and should not be construed as such. As always, readers should consult a qualified attorney for legal advice concerning specific situations.