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U.S. Supreme Court’s EPA emissions ruling to have little impact on state, Duke Energy

By Bertrand M. Gutierrez, Winston-Salem Journal

The U.S. Supreme Court on Monday handed down a decision against the U.S. Environmental Protection Agency’s Mercury and Air Toxics Rule, a rule implemented in April to reduce some of the most toxic air pollution from coal-fired power plants, though Duke Energy officials say the decision will not have any immediate effect.

The justices, split 5-4, ruled that the EPA did not adequately take cost into consideration when it first decided to regulate the toxic emissions from coal- and oil-fired plants.
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The EPA did factor in costs at a later stage, when it wrote standards that are expected to reduce the toxic emissions by 90 percent. But the court said that was too late. The rule will remain in place while the case goes back to a lower court for the EPA to decide how to account for costs, conservationists and energy-sector officials said.

In the “immediate term, all that will happen is that the case will go back to the lower court,” said Chad Eaton, a Duke Energy spokesman.

“The lower court will then have to determine what EPA must do to cost-justify the MATS rule. This process will require additional time,” Eaton said.

Pete Harrison, a staff attorney at the Waterkeeper Alliance, also said that the decision does not have a significant immediate effect.

"Three years ago, EPA for the first time put limits on mercury and other toxic air pollutants from coal power plants, which have poisoned fish and cause health problems ranging from asthma to cancer.

“Today the Supreme Court erased those important protections on a questionable technicality. Fortunately, this disappointing ruling will have a very limited impact because utilities have already closed the dirtiest power plants or installed new equipment on them to limit their air pollution to meet compliance deadlines under the rule,” Harrison said.

In the case of mercury, the costs of installing and operating equipment to remove the pollutants before they are dispersed into the air would be $9.6 billion a year, according to the EPA.

But the benefits are much greater – $37 billion to $90 billion annually, the agency said. The savings stem from the prevention of up to 11,000 deaths, 4,700 nonfatal heart attacks and 540,000 lost days of work, the EPA said. Mercury accumulates in fish and is especially dangerous to pregnant or breastfeeding women, and young children, because of concern that too much could harm a developing brain.

Will Scott, the Yadkin Riverkeeper, said the EPA rule is a good one.

"The Supreme Court accepted industry's definition of costs and benefits – despite evidence from EPA that the public health savings vastly outweigh the costs to utilities. It was entirely 'appropriate and necessary' for EPA to look at health impacts first," Scott said.

Two Republican lawmakers representing North Carolina in Washington supported the Supreme Court’s decision.

"Americans expect the Obama Administration to play by the rules, and not make them up as they go,” said Sen. Richard Burr.

“Today's Supreme Court ruling is a victory for the middle class, the people who bear the cost of excessive regulations. Unfortunately, much damage has already been done in this case – the president's ill-conceived regulation has already cost American jobs that we may never get back," he said.

Rep. Virginia Foxx, R-5th, said: "Today's Supreme Court ruling highlights how the EPA's unelected bureaucrats too often make decisions without consideration for how those choices will affect people's daily lives. Instead of overregulating energy production, we need to focus on advancing policies that allow us to utilize our innovative culture to develop new sources of energy and create jobs here at home."

The primary source of mercury in the U.S. is coal combustion, according to Minor Barnette, the director of Forsyth County’s Office of Environmental Assistance and Protection.

Power plants produce most mercury emissions, he said.

“Mercury is released into the atmosphere by combustion sources and then deposited onto land and into water through precipitation – rain, snow – where it becomes a component of the ecosystem and our food chain, bio accumulating in several species we depend on, like tuna,” Barnette said.

The court challenge was brought by industry groups and 21 Republican-led states, which argued that the regulations were too costly for coal miners, businesses and consumers.

Writing for the court, Justice Antonin Scalia said the EPA was unreasonable in refusing to consider costs at the outset. He was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito.

In dissent, Justice Elena Kagan said it was enough for EPA to consider costs later in the process.

"Over more than a decade, EPA took costs into account at multiple stages and through multiple means as it set emissions limits for power plants," Kagan said.

She was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

The EPA said it is reviewing the court's decision and will determine any appropriate next steps once a review is completed.

"EPA is disappointed that the Supreme Court did not uphold the rule, but this rule was issued more than three years ago, investments have been made and most plants are already well on their way to compliance," EPA spokeswoman Melissa Harrison said.

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