Air Standards Embarrassment Makes Supreme Court More Cautious

May 23, 2016

supreme-court-546279_1920In a story of back-and-forth legislative second chances, the roll out of the Mercury and Air Toxics Standards (MATS) illustrates all too well that sometimes it is better to ask forgiveness than permission.

In June 2015 the Supreme Court ruled 5-4 that the Environmental Protection Agency’s (EPA) Mercury and Air Toxics Standards were illegal. These standards represented the first federal action designed to require power plants to limit emissions of toxic air pollutants including mercury, arsenic and assorted metals.  The Supreme Court asserted that the EPA failed to consider cost in its decision to regulate power plants and gave the EPA an opportunity to revise the rules to include a cost-benefit consideration.

Unfortunately, MATS had already spent considerable time navigating upward through lower courts, none of which stayed the implementation of these new standards.  The Supreme Court did not stay the Mercury and Air Toxics Standards, either, and by the time the Supreme Court required the EPA to rectify its cost consideration problems, companies across the country had already poured millions into efforts to comply with the new rules.

In March of this year, current Supreme Court Chief Justice John Roberts chose to reject a plea calling for the court to block enforcement of the standards. Chief Justice Roberts unilaterally responded to the matter less than 24 hours after receiving the EPA’S response. By electing to reject the request himself, Roberts avoided the likely 4-4 split resulting from the loss of Justice Antonin Scalia. By April 14, the EPA had submitted its final technical corrections and its consideration of cost for implementing MATS for power plants.

Together, these actions effectively thwarted the June 2015 Supreme Court decision in Michigan v. Environmental Protection Agency. Standards once deemed illegal were now applied nationally with the full support of the justice system.

Would this story be different if, in June of 2015, the U.S. Supreme Court had instead issued a stay on implementation of the Mercury and Air Toxics Standards until the EPA appropriately addressed its cost consideration and technical issues? With recent developments regarding the Clean Power Plan, it appears that even the Supreme Court would agree.

By the time Chief Justice Roberts made the call to effectively undo the June 2015 ruling, the industry had already put compliance into motion. Millions had been spent in an effort to comply with the new rules, and from a legislative perspective supporting the standards would no longer appear to harm industry. That assumption wasn’t entirely incorrect; much of the economic burden had already been shouldered. In a clever twist, the EPA was able to succeed with the Mercury and Air Standards functionally before ever succeeding legislatively.

However, the Supreme Court appears to have realized its influential error, as it made the decision earlier this year to halt implementation of another unrelated EPA program—the Clean Power Plan (CPP). This legislation received five separate stay applications by over two dozen industry organizations and states. Rather than grant the EPA time to address the policy merits and potentially replay Michigan v. EPA, the Supreme Court has blocked the implementation of the CPP and granted—at least temporarily—a small respite for industry.