I’ve only now had the opportunity to catch up with EPA’s proposed reconsideration of its approach to cost-benefit analysis for the Mercury and Air Toxics Standards. I don’t know whether I’ve gone down a rabbit hole or it’s just that the law is an ass. Either way, it’s not good news.
Tag Archives: MATS
Last week, EPA issued its “Supplemental Finding”, confirming that it still believes that its Mercury and Air Toxics Standards are “appropriate and necessary.” I don’t have much to add to our post at the time of the proposed Supplemental Finding. In short, the Supplemental Finding isn’t going to change anyone’s mind, but it should be sufficient to withstand judicial review as long as the courts still believe in Chevron deference.… More
On Wednesday, EPA published certain amendments to the Mercury and Air Toxics Standards in the Federal Register. EPA describes most of the changes as “technical corrections,” but there is one important substantive change. EPA has deleted the affirmative defense for violations caused by equipment malfunctions.
The change follows EPA’s 2015 SIP call requiring states to delete affirmative defenses for violations related to startup, shutdown, or malfunction events. … More
Yesterday, the D.C. Circuit Court of Appeals refused to vacate EPA’s Mercury and Air Toxics Standards. The decision was not a surprise. As I noted earlier this fall, there is a definite trend towards refusing to vacate complex EPA rules. Where the rule is sufficiently complicated and EPA can tell any kind of credible story that maintaining a slightly tarnished rule is better than no rule at all,… More
Late last week, EPA issued a Supplemental Finding, concluding that it is still “appropriate and necessary” to regulate hazardous air pollutants from coal- and oil-fired electric generating units. The Supplemental Finding was necessary after the Supreme Court ruled earlier this year that EPA’s original decision to regulate HAP emissions from EGUs was flawed because EPA did not consider costs in making the decision. Is the Supplemental Finding enough to ensure that the Mercury and Air Toxics rule is upheld this time around? … More
The short answer is, yes, though the majority is more wrong.
In fact, the issue in Michigan v. EPA seems so simple that the MATS rule could have been affirmed in a two-page opinion. Judge Scalia notes that the word “appropriate” – on which the entire 44 pages of the majority, concurring, and dissenting opinions focus – is “capacious”. I agree. … More
D.C. Circuit Affirms EPA’s Utility Air Toxics Rule: An “Appropriate” Rule Need Not Be Justified By Cost-Benefit Analysis
Yesterday, the D.C. Circuit Court of Appeals affirmed EPA’s rule setting limits for emissions of mercury and other air toxics from fossil-fuel-fired electric steam generating units. The focus of the decision – and the issue on which Judge Kavanaugh dissented – was whether EPA was required to consider the costs that would be imposed by the rule. EPA said no and the majority agreed.
Section 112(n) of the Clean Air Act required EPA to perform a study of the health hazards related to hazardous emissions from EGUs prior to regulating them. … More
On Thursday, EPA finalized revisions to the Mercury and Air Toxics Standards, or MATS (also known as “Utility MACT”). The most significant change was to revise the mercury emissions standard from 0.0002 pounds per gigawatt-hour to 0.003 pounds per gigawatt-hour. The change was made in response to comments suggesting that the more stringent standard simply wasn’t attainable. EPA notes that attainment of the 0.003 lb/GWh will still require installation of the same types of pollution control equipment.… More
There have been so many developments recently on the air front (and I’m so far behind due to an appellate brief) that I thought I would combine a few recent items.
First, oral arguments were heard Monday on the challenges to the Bush EPA ozone NAAQS of 0.075 ppb. As I have previously noted, the Court of Appeals for the District of Columbia Circuit has made pretty plain that EPA cannot ignore the recommendations of the Clean Air Science Advisory Committee in setting the NAAQS. … More