Court refuses to overturn air pollution rule despite Supreme Court defeat

This is a defeat in the effort to rein in the EPA.

From The Hill

An appeals court has upheld the Obama administration’s sweeping mercury pollution rule for power plants, despite a Supreme Court decision against the regulation.

The Court of Appeals for the District of Columbia Circuit ruled Tuesday that the Environmental Protection Agency (EPA) is allowed to enforce the air pollution regulation while it works to fix the flaw identified by the high court.

The Supreme Court ruled in June that in developing the mercury and air toxics standards, the EPA violated the Clean Air Act by not considering the compliance costs to electric utilities.

The agency did consider costs in writing the rule, but the justices decided that a unique provision in the law requires a cost-benefit analysis before even starting to write it.

The Supreme Court did not overturn the rule and left it to the Circuit Court to decide its fate. The EPA plans to fix the problem by April by simply reasserting the cost-benefit analysis that it already completed.

The Circuit Court judges did not say why they reached their decision in the brief order, although they noted that the EPA has promised a fix by April 16.

EPA spokeswoman Melissa Harrison said the agency is “very pleased” with the Circuit Court’s decision.

“These practical and achievable standards are already cutting pollution from power plants that will save thousands of lives each year and prevent heart and asthma attacks,” she said. “The standards also slash emissions of the neurotoxin mercury, which can impair children’s ability to learn.”

Harrison noted that the majority of power plants affected by the rule are already operating the necessary controls to comply.

A group of states and energy companies had asked the Circuit Court to vacate the rule, arguing that the Supreme Court’s decision identified a fatal issue that prevents the rule’s enforcement.

But the EPA said that argument ignores the court’s “tradition of remanding deficient rules without vacatur when vacatur would have significant adverse consequences for public health and the environment, or offers evidence of any significant disruptive consequences for industry of maintaining the status quo under the Rule through remand without vacatur.”

In oral arguments earlier this month, the Circuit Court judges repeatedly questioned whether the states and energy companies would experience any harm if the rule were allowed to stand,according to Bloomberg BNA.

The mercury standard is one of the most expensive regulations put forth by the Obama administration. Enforcement only started earlier this year, but utilities blamed it for the closure of scores of coal-fired power plants in recent years.

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