States, Cities, EDF and Others Ask Supreme Court to Reject the Latest Attack against the Mercury and Air Toxics Standards

(Washington, D.C. – May 6, 2015) A coalition of 15 states, five local governments, and leading medical and environmental groups including EDF is asking the Supreme Court to reject the latest in a long line of attacks on the Mercury and Air Toxics Standards – a historic clean air measure that is already working to save American lives and protect children’s health.

The coalition filed a brief in opposition to certiorari with the Supreme Court today, outlining the vital public health benefits at stake: 

“The [Mercury and] Air Toxics Rule … addresses emissions of hazardous air pollutants from power plants, which are by far the largest sources of mercury and many other toxic contaminants that Congress listed as warranting the Clean Air Act’s most urgent and stringent control because of the dangers they pose to human health and welfare.” (Brief, page 1)

The brief was filed by the states of Massachusetts, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Minnesota, New Hampshire, New Mexico, New York, Oregon, Rhode Island, and Vermont, the District of Columbia, the cities of Baltimore, Chicago, and New York, and Erie County in New York, together with an extensive list of health, medical and environmental experts including EDF (the full list is below). 

The U.S. Environmental Protection Agency (EPA) and a coalition of power companies including Calpine, Exelon, National Grid Generation, and Public Service Enterprise Group are also expected to file briefs opposing certiorari today.

This is the third time that opponents of the Mercury and Air Toxics Standards have gone to the Supreme Court to try to overturn the life-saving clean air protections. They are also currently suing in the U.S. Court of Appeals for the D.C. Circuit to block the safeguards. 

The lawsuits continue in spite of the fact that almost every power plant in America is already in compliance with the Mercury and Air Toxics Standards.  And since 2011, major power companies have dramatically reduced their estimates of the costs to comply with the Mercury and Air Toxics Standards, while the body of scientific evidence supporting them has been strongly affirmed.

“A compelling body of evidence shows that the Mercury and Air Toxics Standards are a cost-effective step to address the enormous public health hazards of mercury, arsenic, acid gases and other toxic air pollution,” said Graham McCahan, Senior Attorney for Environmental Defense Fund. “The unending legal attacks against these necessary and cost-effective protections put American families and communities at risk of toxic pollution. We look forward to continuing our vigorous support of these vitally important protections.” 

The Mercury and Air Toxics Standards set the first-ever national limits on hazardous air pollutants — including mercury, arsenic, chromium, and hydrochloric acid gas — from power plants, the largest source of those pollutants. The pollutants covered by the Mercury and Air Toxics Standards are dangerous to human health even in small doses — mercury causes brain damage in infants and children, metal toxics like chromium and nickel cause cancer, and acid gases cause respiratory problems. When fully implemented, the Mercury Standards will prevent up to 11,000 deaths and tens of thousands of other serious health problems each year.

When EPA wrote the Mercury and Air Toxics Standards in 2011, it found that the public health benefits of the Mercury and Air Toxics Standards were up to $90 billion annually, and far exceeded compliance costs. However, in June 2015, a sharply divided Supreme Court ruled 5-to-4 that EPA should have also considered the costs in its initial, or threshold, decision to address these hazardous pollutants. EPA had considered costs later in the process when it established the resulting emissions safeguards. (EDF was a party to the case.) 

The Supreme Court remanded the case to the U.S. Court of Appeals for the D.C. Circuit. Opponents then asked both the D.C. Circuit and the Supreme Court to block the continued implementation of the Mercury and Air Toxics Standards. Both requests were denied.

Last month, EPA fulfilled the Supreme Court’s directives with a final finding confirming that the cost of compliance for the Mercury and Air Toxics Standards is eminently reasonable when considered in light of the serious public health and environmental hazards of toxic emissions from power plants. Opponents sued over the final finding just hours after it was issued. That case is currently pending in the D.C. Circuit. 

Opponents are now asking the Supreme Court to overturn the Mercury and Air Toxics Standards on the grounds that the D.C. Circuit’s practice of leaving safeguards in place on remand while an agency works to address a flaw is illegal – a suggestion that is legally unfounded and would require the Supreme Court to substantially interfere with the long-accepted duties and responsibilities of lower courts in a wide range of cases.

The full list of signers on today’s coalition brief is: the states of Massachusetts, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Minnesota, New Hampshire, New Mexico, New York, Oregon, Rhode Island, and Vermont; the District of Columbia, the cities of Baltimore, Chicago, and New York, and Erie County in New York; the American Academy of Pediatrics, American Lung Association, American Nurses Association, American Public Health Association, and Physicians for Social Responsibility; Environmental Defense Fund (EDF), the Clean Air Task Force, Earthjustice, Natural Resources Defense Council,  Southern Environmental Law Center, Pennsylvania’s Future, Conservation Law Foundation, Environment America, Izaak Walton League of America, Natural Resources Council of Maine, the Ohio Environmental Council, Counsel for Chesapeake Bay Foundation, Clean Air Council, National Association for the Advancement of Colored People, Sierra Club, and Waterkeeper Alliance. 

You can find more about the Mercury and Air Toxics Standards, including all legal briefs, on EDF’s website.