Declaring that the war against the Mercury and Air ToxicsStandards is over, several generators joined the U.S. EPA, supportive statesand environmental groups to defend against an attempt to drag the rule backbefore the U.S. Supreme Court.
The MATS rule has already been reviewed by the SupremeCourt, which found inJune 2015 that the EPA did not properly consider whether the regulation was "appropriateand necessary" when considering the cost of compliance. The EPA wasdirected to conduct a new analysis, which was in April. The agency foundthat regulating mercury and other pollutants from power plants was indeedappropriate and necessary when cost was is factored in.
But now, the rule's opponents want another crack at therule. The state of Michigan has led the charge, asking the high court to determine whether arule can remain in place when an agency has not acquired the authority toregulate in the first place. The U.S. Court of Appeals for the District ofColumbia Circuit declined to stay the MATS rule while the EPA conducted thenecessary analysis. The Supreme Court, too, passed on a request to do the same.The petitioners argue that the D.C. Circuit should have stayed the rule in theinterim, and review is necessary to prevent the same situation from happeningin the future.
The EPA arguedin a recent brief that the release of the supplemental analysis renders thechallengers' argument moot and the D.C. Circuit's decision to remand the ruleto the agency without vacating it was appropriate. The agency also said thepetitioners lack standing on the matter, and cannot show that the rule causesany injury to their "legally protected interests."
The EPA was supported by generators , , subsidiaryNational Grid Generation LLCand Public Service EnterpriseGroup Inc., who said the changes made to power plants to complywith the rule are permanent and cannot be reversed. Therefore, overturning theMATS rule at this time would "jeopardize the investment-backedexpectations of the industry," according to the . Even a temporary stay of the rulewhile the EPA conducted the analysis would have caused disruption and notprovided any benefit to the challenging states, the generators said.
The "vast majority" of companies that wereoriginally challenging MATS have dropped off the latest challenge as well, thecompanies said, therefore the challengers do not have standing to keep thecourt fight going.
"For the only industry regulated by the rule, the waris over," the generators' brief said. "Unlike the industry, thepetitioner states have not invested real capital in complying with the rule,and therefore it is of little consequence to petitioners that those industryinvestments would be endangered by toggling the rule's requirements off and onagain."
Massachusetts Attorney General Maura Healey on behalf of otherstates, public health and environmental groups, arguing against the challengers'assertion that the situation is "capable of repetition, yet evadingreview." Healey, however, said the likeliness of the exact same sequenceof events occurring again — a remand to the D.C. Circuit, the denial of vacaturand the EPA completing a court mandate in a short timeframe — is so remote thatthe Supreme Court should deny the petition for review.
Healey also recalled that the Supreme Court in its 2015decision did not vacate the rule but rather held that the EPA had notconsidered cost properly. In completing the analysis, the EPA has now fulfilledthe high court's mandate.
Joining Healey in support are the states of Connecticut,California, Delaware, Illinois, Maine, Maryland, Minnesota, New Hampshire, NewMexico, New York, Oregon, Rhode Island, Vermont and the District of Columbia.
Challenging the rule with Michigan are Alabama, Alaska,Arizona, Arkansas, Idaho, Kansas, Kentucky, Mississippi, Missouri, Nebraska,North Dakota, Ohio, Oklahoma, South Carolina, Texas, Utah, West Virginia andWyoming, as well as several Texas agencies.
Iowa is listed on both sides of the argument, as Gov. TerryBranstad is seeking review of the rule, while state Attorney General Tom Milleris supporting the EPA.