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Supreme Court will hear challenge to EPA’s power-plant rules

The U.S. Supreme Court agreed Tuesday to hear a challenge brought by 21 states — including Ohio and West Virginia — and other opponents of federal regulations to cut toxic emissions from coal- and oil-fired power plants that are set to kick in next year.

The court’s decision to hear the argument that the Environmental Protection Agency did not consider the costs of the regulations when determining that it should require emission reductions is widely considered a blow to the Obama administration.

The rules, finalized in 2012, aim to reduce the release of toxic chemicals, including mercury, chromium, arsenic, nickel and cadmium, that are known to contribute to respiratory illnesses, birth defects and developmental problems in children. Pittsburgh is downwind from several coal power plants to the west.

“My first reaction was, ‘Why would the states want to stop control of emissions?’ ” said Aimee Erickson, executive director of Citizens Coal Council, a Bridgeville-based watchdog of the coal industry.

Power plants were supposed to begin complying with the tighter standards by April 2015, although they could receive extensions as long as two years.

Opponents of the regulations claim they were only supposed to kick in if “appropriate and necessary” after the implementation of other programs outlined by the 1990 Clean Air Act amendments. They say the EPA’s own cost-benefit analysis found that the costs of the regulations — an estimated $9.6 billion — would far exceed the benefits attributable to the reductions in emissions.

“We are pleased that the Supreme Court has accepted these petitions for review and believe that the EPA should have given serious consideration to the costs imposed by this regulation,” said Melissa McHenry, a spokeswoman for Columbus-based American Electric Power, which operates power plants in 10 states, including Ohio and West Virginia.

The federal appeals court in Washington sided with the EPA in April. The 21 states — Pennsylvania was not one of them — and several industry groups appealed the decision to the nation’s highest court. The case will be argued in late March, with a decision expected by the end of June.

“At stake in this litigation is the fate of a century of state efforts to provide affordable and reliable electricity by building and supporting the construction of public and private power plants,” lawyers for Murray Energy in St. Clairsville, Ohio, wrote in their brief asking for the review.

Pennsylvania, which ranks fourth in coal production and third in overall energy production, did not participate in the appeal because Gov. Tom Corbett’s administration chose to express concerns about the rules through the EPA’s public comment period “rather than sign on to litigation,” said Patrick Henderson, Corbett’s deputy chief of staff and energy executive.

The EPA first proposed the limits on power plant emissions in 2000, the final year of the Clinton administration.

The Bush administration reversed the ruling in 2003, but ultimately approved it in 2005. A federal court decision in 2008 found the rule had violated the Clean Air Act, and the EPA was ordered the revise its rules.

When Barack Obama became president in 2009, the agency again decided to move forward. It issued the final rules in 2012.

“It’s been a long road for sure,” said Adam Garber, field director for PennEnvironment, an environmental advocacy group in Philadelphia.

In the initial appeal decided in its favor in April, the EPA argued that it was not required to consider cost when deciding whether the pollutants should be regulated — just when setting the level of regulation. The agency said that even if it had considered costs, they would have been outweighed by the benefits of regulation.

Two of the three judges on the appellate panel said that the EPA properly looked only at health risks, not compliance costs. But the agency did factor in costs and benefits at the next step, when it wrote the standards that the plants must meet, the court said.

The EPA determined that when the rules are fully in effect in 2016, their benefits will exceed the costs by a factor of at least three to one. Some industry groups have said the EPA overstated the benefits.

The Supreme Court said it wants to know whether EPA unreasonably refused to consider costs in the first place.

Almost two-thirds of the nation’s power-generating units had the appropriate pollution control technology by the end of 2012, according to the U.S. Energy Information Administration. About 10 percent were slated for retirement, rather than retrofitting.

The Associated Press and Bloomberg News Service contributed. Adam Brandolph is a staff writer for Trib Total Media. He can be reached at 412-391-0927 or [email protected].


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