Author Archives: Graham McCahan

EDF and Many Others Defend the Mercury and Air Toxics Standards at the Supreme Court

Source: Daderot (Own work) [Public domain], via Wikimedia Commons

On Wednesday (March 25th) EDF and a large group of allies will be at the U.S. Supreme Court as the Justices hear oral arguments on the U.S. Environmental Protection Agency’s Mercury and Air Toxics Standards.

EDF has been helping defend these life-saving standards since they were first challenged ­– and upheld – in the U.S. Court of Appeals for the D.C. Circuit.

Why is EDF fighting for the Mercury and Air Toxics Standards?

Because they will save lives and protect our families and communities from the harmful effects of toxic air pollutants (including mercury, arsenic, and acid gases) emitted by the single largest source of such pollution in the U.S.: coal-fired power plants.

If you want to get all the legal details, you can read EDF’s brief – and all the other briefs in the case – on our website.

If not, here are two things you should know – points that jumped out at me from reading the many briefs filed in this case in support of the Mercury and Air Toxics Standards:

  • By significantly reducing toxic air pollution from its single largest source, the Mercury and Air Toxics Standards will help ensure that the air we breathe and the fish we eat are cleaner and safer.
  • These pollution reductions absolutely can be achieved. In fact, most of the power sector has already installed pollution control technology to comply with the standards.

This is an incredibly important case for public health. One sign of that is the unusually large number of groups who have submitted briefs in support of these life-saving clean air protections.

In addition to EDF, a broad coalition of states, cities, power companies, medical associations, and clean air advocates are parties to the case in support of the EPA.

And that doesn’t include many more leading experts and affected organizations that have filed amicus curiae briefs.

For those who don’t speak Latin, amicus curiae means “friend of the court.”

A Supreme Court case is not a popularity contest, and the Justices focus first and foremost on the facts and applicable law. But their consideration of a case is often helped when interested citizens or organizations file “friend of the court” briefs. These briefs can offer insights on important technical or scientific issues, show how a particular community might be affected by the Court’s decision, or provide differing perspectives than those offered by the parties to the case.

Fortunately, the Mercury and Air Toxics Standards have many “friends.”

They include: the American Thoracic Society (a group of more than 15,000 physicians, research scientists, nurses, and other healthcare professionals); leading pollution control experts; the Institute for Policy Integrity at NYU Law School; the Constitutional Accountability Center; the Union of Concerned Scientists; companies that manufacture technology for reducing air toxics from power plants; the National Congress of American Indians and a coalition of tribes and inter-tribal fish commissions; and a coalition of preeminent public health scientists led by Dr. Lynn Goldman, Dean of the Milken Institute School of Public Health at George Washington University.

Here’s a small sample of what these friends of the court have to say about the health effects of mercury and other air toxics from power plants:

Power plants emit acid gas, metals including mercury, lead, arsenic, cadmium, nickel, and chromium, and particulate matter that can penetrate deep into human lungs. All humans are susceptible to adverse health effects from these emissions, but pregnant women, fetuses, infants, children, elderly people, and people with preexisting health conditions are especially vulnerable.

(Amicus brief of American Thoracic Society at pages 2 and 3)

[I]t is reasonable to believe that any reductions in exposure that can be achieved will have benefits across the population. Even at low exposure levels, methylmercury can lead to reductions in IQ for developing children.  These deficits in IQ may not be clinically apparent in individual children, but on a population level they have cumulative impacts with large public health and economic consequences.

(Amicus brief of Health Scientists, Dr. Lynn Goldman, et al. at page 13)

The emissions harm Indian health, putting tribal members at unusually high risk for neurodevelopmental disorders, cardiovascular disease, autoimmune deficiencies, and other adverse health effects from methylmercury exposure. In addition, mercury emissions harm Indian culture, threatening longstanding traditions of fishing and fish consumption that are central to many tribes’ cultural identity. Finally, mercury emissions harm Indian subsistence, contaminating food sources that many tribal members depend on for survival.

(Amicus brief of National Congress of American Indians, et al. at page 4)

And here’s what other friends of the court say about the feasibility of the Mercury and Air Toxics Standards, and its implications for the power sector:

The experience of the states that have implemented mercury rules demonstrates that control of mercury emissions is possible with available technology and can be accomplished on a cost-effective basis and without compromising reliability. . . . [N]early 70 percent of total coal-fired capacity was either in compliance with the MATS or already had plans in place to achieve compliance at the end of 2012.

(Amicus brief of Experts in Air Pollution Control at page 32 and 34)

[Overturning MATS] would penalize those who responsibly sought to comply with the impending Rule and might be unable to recover their expenses for doing so, and would reward those who dragged their heels at the expense of public health.

(Amicus brief of Emission Control Companies at page 23)

This is a tremendous show of support for the Mercury and Air Toxics Standards from a broad and compelling group of leading experts and affected organizations.

In fact, this case is so important and involves so many parties that the Supreme Court has extended the usual amount of time allowed for argument. On Wednesday, the lawyers – including U.S. Solicitor General Donald Verrilli for EPA – will have 90 minutes to argue the case, instead of the usual hour.

We at EDF are proud to stand with EPA, with all our allies, and with the many “friends of the court” to present a forceful case for cleaner, healthier air to the nation’s highest court.

Posted in Clean Air Act, EPA litgation, Health, News, Partners for Change, Policy| Comments are closed

A New Step in the Fight to Reduce Toxic Mercury Pollution from Power Plants

(This post was written by EDF Senior Attorneys Graham McCahan and Tomas Carbonell)

Today, EDF and its allies joined the latest fight to protect the Environmental Protection Agency’s (EPA) Mercury and Air Toxics Standards.

We filed a brief asking the Supreme Court to deny the petitions that are seeking review of a lower court decision upholding the standards.

The Mercury and Air Toxics Standards (MATS) will require crucial and long-overdue emission reductions of toxic pollutants including mercury, arsenic, and acid gases from the single largest source of toxic air pollution in the U.S.— coal-fired power plants.

Starting in April 2015, when they go into effect, these standards will prevent thousands of premature deaths, heart attacks, and asthma attacks every year.

The Mercury and Air Toxics Standards were upheld by a panel of judges on the D.C. Circuit Court of Appeals in April 2014 against a variety of legal challenges.

Fortunately, most power plants in the U.S. are already on track to comply with these life-saving standards.

The U.S. Energy Information Administration reported that by the end of 2012 — or more than two years ahead of the April 2015 compliance deadline:

64.3% of the U.S. coal generating capacity in the electric power sector already had the appropriate environmental control equipment to comply with the MATS.

Unfortunately, some power companies and their industry partners continue to file legal attacks against the Mercury and Air Toxics Standards.

Our opponents are continuing their legal attacks in spite of the D.C. Circuit’s detailed opinion strongly upholding EPA’s authority to issue the Mercury and Air Toxics Standards and affirming the EPA’s well-reasoned determinations on key technical issues.

Industry interests and states have filed petitions asking the U.S. Supreme Court to review the D.C. Circuit’s decision.  Their petitions primarily emphasize the alleged costs of the Mercury and Air Toxics Standards — even though some of the same power companies have recognized that the standards include flexibilities that have helped them slash their compliance costs.

For instance, Southern Company CFO and Executive Vice President Arthur P. Beattie stated in 2012 that the amount the company projects for MATS compliance costs would be far lower than previously predicted:

[B]ecause of the new flexibility that [the company has] found in the final rules of the MATS regulation." (Arthur P. Beatty, CFO and Executive Vice President of Southern Company,  Deutsche Bank Clean Tech, Utilities and Power Conference, May 15, 2012)

In fact, as the D.C. Circuit recognized in its decision, EPA’s cost-benefit analysis found that the Mercury and Air Toxics Standards would yield as much as $90 billion in annual health benefits once implemented — approximately nine times the anticipated cost of the rule.

The good news is that many people and organizations— including public health, equal justice, and environmental groups, plus a number of states and cities — are standing together to safeguard these protections for our communities and families.

Those groups include the American Academy of Pediatrics, American Lung Association, American Nurses Association, American Public Health Association, Chesapeake Bay Foundation, Citizens for Pennsylvania’s Future, Clean Air Council, Conservation Law Foundation, Environment America, Izaak Walton League of America, National Association for the Advancement of Colored People (NAACP), Natural Resources Council of Maine, Natural Resources Defense Council, Ohio Environmental Council, Physicians for Social Responsibility, Sierra Club, and Waterkeeper Alliance – along with EDF, of course.

That’s why today we joined together to file a brief with the Supreme Court asking the Justices not to reconsider the D.C. Circuit Court’s decision upholding these life-saving clean air protections.

Posted in Clean Air Act, EPA litgation, Health, Policy| Read 2 Responses

Broad Coalition Presents Case for Clean Air to the Supreme Court

The U.S. Supreme Court just heard arguments in a case over the Environmental Protection Agency’s (EPA) critically important Cross-State Air Pollution Rule.

The Cross-State Air Pollution Rule would clean up the pollution from power plant smokestacks across the eastern U.S. that drifts downwind, up to hundreds of miles, transforming into lethal particulates and ground-level smog.

A coalition of states, cities, leading health associations, power companies, and environmental groups – including EDF – presented a strong case to the High Court to defend these clean air protections for 240 million Americans.

This is not the first time that the Supreme Court has addressed the issue of the interstate transport of air pollution. In 1907, the State of Georgia sued Tennessee Copper Company for polluting its air and its forests. In enjoining the harmful air pollution at issue, Supreme Court Justice Oliver Wendell Holmes stated:

[i]t is a fair and reasonable demand on the part of a sovereign [in our federal system] that the air over its territory should not be polluted on a great scale … by the act of persons beyond its control.

This week, the Supreme Court gave modern meaning to its decision from over a century ago. The Justices peppered attorneys with questions about the Cross-State Air Pollution Rule, and the questions indicated that they recognize the important role of the federal government in protecting the citizens in downwind states from upwind pollution sources.  Indeed, modern air quality monitoring systems, measurements of the emissions from smokestacks, and advanced modeling plainly show that interstate transport is a serious 21st century air pollution problem.

EPA estimates that about 30 percent to 90 percent of smog and 50 percent to 90 percent of soot pollution in areas that are out of compliance with national health-based air quality standards are caused by power plants, factories and other sources in states upwind.

Unfortunately, when EPA stepped in to address the issue (which the Clean Air Act also requires) with its science-based and cost-effective Cross-State Air Pollution Rule, the D.C. Circuit Court of Appeals overturned the Rule.

EDF joined EPA, plus a host of other environmental and public-health organizations, states and cities, and power companies in filing briefs with the Supreme Court asking it to overturn the D.C. Circuit’s decision. Several more parties, representing a wide-range of interests and expertise, filed amicus (or “friend of the Court”) briefs in support of EPA’s clean air protections.

Fortunately, during this week’s oral argument a number of Supreme Court Justices seemed open to EPA’s cost-effective solution to the difficult problem of interstate air pollution.

As the Wall Street Journal reported, the Justices:

 expressed sympathy for the Environmental Protection Agency's approach to air pollution that crosses state lines.

One of the most noteworthy moments in this week’s argument occurred when Justice Breyer said:

with this [Cross-State] plan, we get the job done at much lower cost.  Now, where in the statute does it say they can’t do that?

Similarly, Justice Kagan stated:

what the EPA said here was . . . we’re going to distinguish between States that . . . have put a lot of technology and a lot of money into this already and on the other hand States that have lots of cheap and dirty emissions. And why isn’t that a perfectly rational thing to do under this very statute?

At Environmental Defense Fund, we have fought hard for these clean air safeguards — from their genesis to the highest Court in the land — so that 240 million Americans can breathe easier. Hopefully, the Supreme Court will make that possible by ruling in favor of clean air.

Posted in Clean Air Act, EPA litgation, News, Policy| Comments are closed

Supreme Court to review decision critical to cleaning up America's air

(This post first appeared earlier today on EDF Voices)

On June 24, 2013, the U.S. Supreme Court decided to review the D.C. Circuit Court of Appeals’ decision in a case called EME Homer City Generation. To anyone concerned about the quality of the nation’s air, this was very big news. Here’s why.

In EME Homer City, which the D.C. Circuit decided last summer, a divided court overturned the Cross-State Air Pollution Rule, one of the Environmental Protection Agency’s most important (and cost-effective) clean air programs. In their filing asking the Supreme Court to hear the case, the Environmental Protection Agency argued that “the court of appeals committed a series of fundamental errors that, if left undisturbed, will gravely undermine the EPA’s enforcement of the Clean Air Act.”

The stakes are high. Every year, the Cross-State Rule, if only it can be applied, will save up to 34,000 lives and $110 to $280 billion in net health benefits. Without it, millions of people and entire communities will remain exposed to dangerous levels of pollution.

EPA issued the Cross-State Rule in 2011 under the Clean Air Act’s “good neighbor” provision, which directs states to “prohibit” emissions that are carried downwind and contribute to unhealthy air pollution in neighboring states. If states do not live up to their good neighbor obligations, then the Clean Air Act requires EPA to step in. According to 2011 estimates, air pollution from neighboring states accounted for more than three-quarters of local air pollution in many areas struggling to comply with EPA’s health-based standards. As this data shows, millions of Americans are breathing unhealthy air that originates in neighboring states.

The Cross-State Rule helps address this problem by reducing harmful smokestack pollution from power plants, which can drift for hundreds of miles and adversely affect distant communities. Despite its enormous health benefits and relatively small compliance costs, numerous power companies and several states challenged the Cross-State Rule in the D.C. Circuit. Numerous parties then joined the case in support of EPA and the Cross-State Rule, including: several states and cities that are adversely affected by interstate pollution; three major power companies; and EDF, along with some of its public health and environmental allies.

After the D.C. Circuit struck down the Cross-State Rule, Environmental Defense Fund, along with the American Lung Association, Clean Air Council, Natural Resources Defense Council, and Sierra Club filed a petition seeking Supreme Court review, which the Supreme Court granted along with EPA’s petition.

The Supreme Court, we believe, should reverse the decision of the D.C. Circuit and restore the clean air safeguards of the Cross-State Rule.

This will safeguard the air quality of millions of Americans who depend on EPA to protect them from pollution that comes from beyond the borders of their own states. No wonder, when EPA called for the Supreme Court to review EME Homer City, they warned that, should the decision stand, it would “seriously impede the EPA’s ability to deal with a grave public health problem.”

Posted in Clean Air Act, Health, Policy| Comments are closed

Automakers Defend Historic Clean Cars Standards

The world’s biggest automakers are standing up in court to defend America’s historic new fuel economy and greenhouse gas emissions standards.

The Obama Administration announced the clean cars standards last August.

The new standards will double fleet-wide fuel economy by 2025, to 54.5 miles per gallon.

They’ll also:

  • Save families more than $8,000 at the gas pump over the lives of their new cars or trucks
  • Dramatically reduce our nation’s dependence on oil
  • Cut greenhouse gases by six billion tons

By 2025, the standards are projected to reduce U.S. oil consumption by more than two million barrels per day.  Combined with earlier standards for large diesel trucks, the daily oil savings in 2025 will be substantially more than the amount of oil imported each day from Iraq, Kuwait, and Saudi Arabia in 2011.

The six billion tons of greenhouse gas reductions are more than the total of U.S. carbon dioxide emissions in 2010.

(You can read more about the standards, and their benefits on our website)

These historic standards are supported by consumers, the United Auto Workers, national security experts, U.S. automakers, many U.S. states, the Union of Concerned Scientists, and environmental organizations.

Unfortunately, there are some groups that don’t support them.

Industry groups — including the Utility Air Regulatory Group, American Petroleum Institute, National Association of Manufacturers, and National Oilseed Processors Association — have filed legal challenges in the U.S. Court of Appeals for the District of Columbia.

EDF will defend these historic standards in court. We and our allies have already moved to intervene in support of them.

Now, both U.S. and foreign automakers have also stepped in to defend the landmark standards.

Yesterday, the Alliance of Automobile Manufacturers filed a motion to intervene in support of the standards.

Their motion says that the court challenges:

jeopardize the further development and continuation of an integrated national approach to increasing automobile fuel economy and thus reducing carbon emissions.

Just three days earlier, the Association of Global Automakers also filed a motion to intervene in support of the standards.

Members of the two automaker groups include Chrysler, Ford, General Motors, Honda, Toyota, Volkswagen, and Volvo.

It's a great reminder that when we work together, America can achieve lasting gains for our environment and our economy.

 

Posted in Cars and Pollution, Greenhouse Gas Emissions, News| Read 2 Responses
  • About this blog

    Expert to expert commentary on the science, law and economics of climate change.

  • Categories

  • Get blog posts by email

    Subscribe via RSS

  • Meet The Bloggers

    Megan CeronskyMegan Ceronsky
    Attorney

    Nat KeohaneNat Keohane
    Vice President for International Climate

    Ilissa Ocko
    High Meadows Fellow, Office of Chief Scientist

    Peter Zalzal
    Staff Attorney

    Gernot Wagner
    Senior Economist

    Graham McCahan
    Attorney

    Mandy Warner
    Climate & Air Policy Specialist

    Pamela Campos
    Attorney

    Kritee
    High Meadows Scientist