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Court upholds EPA emissions restrictions

| Tuesday, April 15, 2014, 9:18 p.m.

WASHINGTON — A federal appeals court on Tuesday upheld the Environmental Protection Agency's emission standards for mercury and other hazardous air pollutants from coal- and oil-fired power plants.

In its ruling, the court rejected state and industry challenges to rules designed to clean up chromium, arsenic, acid gases, nickel, cadmium, mercury and other dangerous toxins.

The EPA's determination in 2000 that regulating emission standards is appropriate and necessary and its reaffirmation of that determination in 2012, “are amply supported by the EPA's findings regarding the health effects of mercury exposure,” said the court.

It also concluded that, because Congress did not specify what types or levels of public health risks should be deemed a hazard under federal law, authority was delgated to the EPA to give reasonable meaning to the term “hazard.”

In the majority were chief judge Merrick Garland and judge Judith Rogers, both appointees of President Bill Clinton. Judge Brett Kavanaugh, an appointee of President George W. Bush, joined most of the decision, but he parted company with his colleagues on the issue of cost — specifically, whether the EPA is obligated to consider industry costs in deciding whether regulation of hazardous air pollutants from power plants is appropriate.

“The problem here is that EPA did not even consider the costs,” Kavanaugh said. “And they are huge, about $9.6 billion a year — that's billion with a b — by EPA's own calculation.”

In response, the majority said the EPA properly decided that the decision whether to regulate mercury should be based on health risks, not compliance costs. The majority added that the EPA had determined that benefits of the rule exceeded costs by a factor of at least 3 to 1.

Some industry groups have said the EPA overstated these benefits.

FirstEnergy Corp. spokeswoman Stephanie Walton said Pennsylvania's largest utility operator is “disappointed in the ruling,” but it will continue to put into effect a plan to be in full compliance with the regulations.

Akron, Ohio-based FirstEnergy plans to spend $465 million on new environmental controls at its six remaining coal-fired power plants, she said. It already is in the process of closing 11 older, less efficient power plants.

“We are currently reviewing the decision,” Walton said, and no decision has been made on an appeal to the Supreme Court.

Paula DuPont-Kidd, a spokeswoman for PJM Interconnection LLC of Audubon, Pa., which coordinates wholesale power markets in 13 states from Pennsylvania to Illinois, said the ruling is unlikely to change the current status of power generation because utilities already have plans to put the new rules into effect. “We see a shift these days to natural gas because of its availability and price. Natural gas is closing the margin where coal used to be the cheapest form of energy.”

In the 26 months ending Dec. 31, requests for deactivation of power plants nearly doubled in terms of power generation, affecting 20.4 million megawatts of power, compared to 10.9 million megawatts in the previous eight years, PJM figures show. One megawatt powers roughly 800 homes.

American Coalition for Clean Coal Electricity said the EPA regulations have contributed to utilities announcing that almost 300 coal-fueled generating units in 33 states will be shutting down, costing the electricity sector $200 billion in compliance costs and destroying at least 544,000 jobs.

“We are disappointed that the D.C. Circuit Court reaffirmed EPA's overreaching by upholding the rule, which EPA estimated to be one of the most expensive regulations ever put forward,” said spokeswoman Laura Sheehan. “Unfortunately tough news like today's ruling is nothing new to our industry. If anything, the ruling bolsters our resolve to continue pushing back against EPA overreach and protecting American consumers, who are ultimately paying the price for this costly rule.”

It is only in the first stage of rulemaking that the EPA doesn't consider industry costs, said the majority opinion. It added that the second stage leads to standards that are more restrictive and that, when setting those, the EPA does consider costs.

The new regulations are designed to remove toxins from the air that contribute to respiratory illnesses, birth defects and developmental problems in children.

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