A federal appeals court doesn’t appear ready to bring down the hammer on the Environmental Protection Agency’s costly mercury and air pollutant rules.
Chief Judge Merrick Garland of the D.C. Circuit Court of Appeals told a state lawyer, asking the court to vacate the rule on Friday, that the bulk of industry says it would be disruptive “if we were to do anything more than remand” the rule back to EPA, so it can do a cost assessment. Other judges hearing oral arguments Friday also appeared to share Garland’s concerns that killing the Mercury and Air Toxics Standards for power plants would be premature.
The court held oral arguments Friday on the rule after the Supreme Court ruled last summer that the EPA did not have the discretion not to assess the high cost of the rules before they were implemented in 2012.
The D.C. Circuit Court had ruled in favor of the EPA in a previous state-and-industry lawsuit seeking to squash the MATS rule, which led to the appeal to the high court. The Supreme Court heard the case, but only the narrow issue of cost. It did not examine other aspects of the rule.
On Friday, oral arguments began with Michigan Solicitor General Aaron Lindstrom, representing power plants and states, asking the court to rescind the regulations entirely. He argued that under statute the EPA cannot regulate without “an appropriate finding of cost,” and “therefore does not have the authority” to continue with the regulations. “And that means the rule has to be vacated.”
Judge Brett Kavanaugh said EPA has said it will do the cost assessment as directed, which the agency says will not stop the rule from going forward. EPA officials say they will “come out at the same bottomline, so don’t vacate,” Kavanaugh said.
Garland said Lindstrom represented “a single” power plant, “and a very small one” at that. He added that the vast majority of power plant owners don’t want the rule killed entirely because it would disturb the investments they have made to comply.
Lindstrom said the rules add $158 million a year to the operations of each power plant.
The industry had argued before the Supreme Court that the rules cost $9.6 billion annually. The rules have been blamed for the closure of older coal- and oil-fired power plants over the last three years. The EPA told the judges that it plans to do its cost estimate by April 15.
