RANON ALTMAN–The Supreme Court is poised to rule on the issue of whether the Environmental Protection Agency (“EPA”) improperly refused to consider costs in determining whether to regulate hazardous air pollutants (“HAP”) emitted by electric utility engines. Electric utility engines are “fossil fuel fired combustion unit[s]” that produce electricity. If the EPA decides to regulate HAP emissions from electric utility engines, power plants will become more expensive to operate and electricity prices may increase.
In 1970, Congress enacted § 112 of the Clean Air Act (“CAA”) in an attempt to reduce HAPs from the environment. HAPs are air pollutants that “may reasonably be anticipated to result in mortality, or an increase in serious, irreversible illness.” Under § 112 of the CAA, the EPA was required to create a list of HAPs and establish standards for regulating their emissions. However, eighteen years after the enactment of § 112, the EPA only listed 8 HAPs and provided regulation standards for seven of them. As a result, in 1990, Congress amended § 112 of the CAA to include 189 HAPs to the list. Instead of adding Electric Utility Steam Generating units, Congress first directed the EPA to conduct a study on their public health hazards. The EPA was then required to regulate electric utility engines if “appropriate and necessary after considering the study.”
In 2000, based on its study of electric utility engines, the EPA concluded that emissions from coal and oil fired electric generating units was appropriate and necessary. In coming to its conclusion, the EPA found that these units “are the largest sources of mercury emissions in the U.S.” Mercury, which is highly toxic, accumulates in food chains. The EPA explained that “mercury emitted from [electric utility engines] . . . is transported through the atmosphere and eventually deposits onto land or bodies of water.” When in water, mercury converts into a highly toxic substance called methylmercury. It accumulates in predatory fish, and ends up in humans who eat these contaminated fish. When humans eat the contaminated fish, methylmercury “is absorbed into the blood stream and distributed to all tissues including the brain.” Moreover, the study found that electric utility engines emitted other potentially dangerous metals and acid gasses, including arsenic, chromium, nickel, cadmium, dioxins, hydrogen chloride, and hydrogen fluoride. Because of the public health hazards of these emissions, the EPA concluded that it was “appropriate and necessary” to regulate emissions from Electric Utility Steam generating units.
In 2005, the EPA reversed its decisions to regulate electric utility steam generating units and removed them from § 112 of the CAA. In doing so, the EPA explained that it did not have authority to regulate environmental harms contributing to overall pollutant levels that did not have a direct effect on humans. However, in 2012, the EPA again reversed its decision, and confirmed its 2000 finding that regulating electric utility engines under § 112 was appropriate and necessary.
In its 2012 decision to regulate HAPs from electric utility engines, the EPA did not consider the costs of implementing such regulation. The EPA calculated that the costs of regulation would be approximately $9.6 billion dollars, and annualized benefits from $37 to $97 billion. In White Stallion Energy Center v. Environmental Protection Agency, the D.C. Circuit held that the EPA was not required to consider the costs of regulating electric utility engine units. The court emphasized that § 112, which required the EPA to implement regulations if appropriate and necessary, does not on its face direct the EPA to consider costs. The court added that “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumes that Congress acts intentionally…” In the case of the CAA, Congress explicitly mentioned costs in many other sections. The dissent declared that the consideration of costs is “commonly understood to be a central component of ordinary regulatory analysis, particularly in the context of health, safety, and environmental regulation.” It added that for every expenditure of resources, there are less resources to deal with other “grave environmental problems,” and as a result, not considering costs would “bring irrational results.”
Those against the court’s decision in White Stallion Energy Center argue that the rule will force many power plants using electric engine utility units to shut down due to significant costs imposed by the regulation. Accordingly, opponents of the decision suggest that this will “decrease the reliability of the electrical grid,” and increase prices of electricity and consumer goods. Of those affected by these price hikes will be millions of lower-income households, who already have difficulty paying for housing, food, education, and health care.
The Supreme Court is set to hear argument on the issue on March 25, 2015. The Court has yet to decide when it will issue its opinion.
