Supreme Court: EPA erred in rule on toxic emissions from power plants

Federal efforts to curb mercury pollution from coal-fired power plants took a major hit Monday when the U.S. Supreme Court said the government hadn’t properly considered the expense of the tougher regulations.

The court’s 5-4 decision halts further implementation of the Mercury and Air Toxic Standards rule, the landmark 2011 regulation by the Environmental Protection Agency. The rule required hundreds of coal-burning plants, including those in South Carolina, to install equipment to control mercury, a substance linked in multiple studies to respiratory illnesses as well as birth defects and developmental problems in children.

The justices stopped short of invalidating the rule, which will now be sent back to a lower court for further review.

Legal experts said the decision’s immediate impact could be muted, as many of the country’s electric utilities already have taken steps to comply with the rule ahead of a deadline next year.

In some instances, utilities such as SCE&G and Santee Cooper have closed aging power plants, rather than try to upgrade them to comply with tighter air regulations. SCE&G and Santee Cooper, which serve central and coastal South Carolina, have shut down six of 12 coal-burning power stations in recent years.

Remaining sites affected by Monday’s Supreme Court decision are four SCE&G power stations, including the company’s Wateree facility in lower Richland County and its McMeekin site on Lake Murray, according to the S.C. Department of Health and Environmental Control. Santee Cooper operates the other two coal-burning power stations near Georgetown and Moncks Corner.

Coal-fired power plants are considered major sources of mercury pollution in states such as South Carolina, where fish in about 60 waterways are unsafe to eat in more than moderate amounts.

Spokespeople for both SCE&G and state-owned Santee Cooper said they are still assessing the Supreme Court ruling, but for now will continue to move forward with complying with the mercury regulation at their coal plants.

Both utilities say they are shifting away from a heavy reliance on coal in favor of nuclear and other forms of energy generation.

“Today’s Supreme Court ruling doesn’t change SCE&G’s compliance strategy or timeline,’’ the company said in a statement Monday. The statement said the power company, which serves the Columbia and Charleston areas, will complete two nuclear units at its V.C. Summer atomic power station in Fairfield County, while also retiring “three of our older coal-fired units and conversion of three of our smaller units to natural gas.’’

Among those are two coal units at the company’s Lake Murray electrical generating station, which will convert to natural gas next year.

Santee Cooper spokeswoman Mollie Gore said “we are well down the road and as far as we know, we will continue working that plan.’’

S.C. Attorney General Alan Wilson praised the decision. He was among state leaders across the country who challenged the EPA’s mercury rule as overly burdensome and expensive.

The Supreme Court ruling “confirms our belief that the EPA has continued to overstep its authority and has tried on multiple occasions to implement burdensome regulations which would be harmful to our economy,’’ Wilson said in an email. “This is a victory for South Carolinians and the rule of law. As attorney general, I’m committed to fighting these actions in court to prevent unconstitutional overreaches by unelected bureaucrats from disrupting our daily lives, our family budgets and the rule of law.”

Alan Hancock, a former state pollution regulator now with the Conservation Voters of South Carolina, said the ruling is disappointing, but he’s encouraged that utilities already have made efforts to curb mercury emissions.

EPA officials said the agency was reviewing its options while also noting that the justices focused on a cost accounting procedure, and not on the agency’s ability to regulate toxic smokestack emissions through the Clean Air Act.

“EPA remains committed to ensuring that appropriate standards are in place to protect the public from the significant amount of toxic emissions from coal and oil-fired electric utilities and continue reducing the toxic pollution from these facilities,” EPA spokeswoman Melissa Harrison said.

Justice Antonin Scalia wrote for the majority, which included Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. Justice Elena Kagan wrote the dissenting opinion for Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.

The court was not deciding whether the law required the agency “to conduct a formal cost-benefit analysis in which each advantage and disadvantage is assigned a monetary value,” Scalia wrote. “It will be up to the agency to decide (as always, within the limits of reasonable interpretation) how to account for cost.”

It has taken decades to achieve the EPA’s goal of regulating mercury and other hazardous air pollutants. Some of the regulations have already gone into place, and they are to be fully implemented by 2016.

But they have been challenged by industry groups and 21 Republican-led states in which hundreds of the older plants are operating.

The issue comes down to what Congress meant when it ordered the EPA to study whether it was “appropriate and necessary” to regulate the pollutants from power plants. The directive was silent on whether that study should include the costs of regulation.

Objecting states and the industry contended that costs traditionally are a part of such decisions.

The costs and benefits of the regulations are a matter of vigorous dispute. The challengers say that the annual costs of compliance under the rule would be $9.6 billion but that the benefits of reduced emissions of hazardous air pollutants amount to only $4 million to $6 million.

The EPA and environmental groups estimate the savings to be much more, from $37 billion up. Mercury can be especially dangerous to young children and pregnant or breastfeeding mothers, and some of the savings are calculated as coming from preventing as many as 11,000 deaths and more than a half million lost days of work.

Nationally, environmental groups blasted the court’s decision, though some activists and legal experts said the setback was temporary.

William J. Snape III, senior counsel for the Center for Biological Diversity, said the ruling meant only that “EPA must go through the paper exercise of calculating costs, and presumably benefits, of necessary and appropriate” regulatory authority that the statute clearly gives the agency.

“The Supreme Court did not vacate the rule, which means it stays in place, at least for now and maybe for a while,” Snape said. “This just adds to the immense pressure to put in place meaningful and durable greenhouse gas rules, with actual emission reductions, this summer.”

But industry groups and congressional Republicans praised the ruling as an overdue rebuke to the EPA.

“As children, we learn that every day can’t be Christmas. EPA just learned that today,” said Scott Segal, director of the Electric Reliability Coordinating Council, a group of power plants.

“The agency cannot continue to write rules without regard to their cost, simply because the agency believes its cause is just.”

Staff writer Sammy Fretwell and Washington Post staff writers Robert Barnes and Joby Warrick contributed to this story.