EPA moves to fix air pollution rule after Supreme Court loss

The Environmental Protection Agency (EPA) is planning to fix by this spring the problem that caused the Supreme Court to rule against its major air pollution regulation in July.

{mosads}The EPA told a lower court on Monday that it is formulating a plan to conduct cost-benefit analysis as part of a revision of its finding that the mercury rule is “appropriate and necessary.”

“EPA intends to submit a declaration establishing the agency’s plan to complete the required consideration of costs for the ‘appropriate and necessary’ finding by spring of next year,” the agency wrote in a filing with the Court of Appeals for the District of Columbia Circuit.

The high court told the agency in Michigan v. EPA that it should have considered the costs of regulating emissions of mercury, arsenic and acid gases from coal-fired power plants before deciding to write the regulation.

The circuit court is responsible for deciding how the case moves forward after the Supreme Court sent the case back to it. So far, it has not asked the EPA to submit anything about how the case will proceed.

The regulation remains in effect while the circuit court decides whether to block its enforcement and how the EPA can fix the cost analysis problem.

While the EPA conducted a cost-benefit analysis as part of the regulating process and found about a 10-1 ratio of health benefits to compliance costs, the Supreme Court found that the unique “appropriate and necessary” language in the Clean Air Act required the agency to go through such an analysis before even deciding to regulate.

The EPA’s statements about the harms of air pollution, both publicly and in the court filing, strongly hint that it will conclude that its regulation is justified.

EPA head Gina McCarthy said a week after the ruling that she is confident that the mercury regulation will stand up and its benefits will be realized.

“The majority of power plants have already decided and invested in a path to achieving compliance with those mercury and air toxic standards,” she said. “So we are well on our way to delivering the toxic pollution reductions that people expected.”

The Monday filing came in response to a motion from a Colorado utility, which faces an April deadline to either upgrade a specific coal-fired power plant or shut it down to comply with the rule.

The utility asked the court to extend its deadline due to the Supreme Court ruling, a motion that both the EPA and a group of competing utilities opposed, arguing that the lower court should be allowed to go through its normal considerations regarding the future of the rule.