State officials applaud legal victory against EPA emissions rule

Monday’s ruling in Michigan vs. EPA concerned whether the EPA had to consider the costs of implementing its Mercury and Air Toxics Standards (MATS) rule, which first took effect earlier this year and — by most accounts — has contributed to the shuttering of older coal-fired power plants that would be costly to upgrade with new scrubbing technology.

The EPA is also expected to finalize its Clean Power Plan this year, which proposes curbing greenhouse gas emissions from new and existing power plants.

State leaders have decried both MATS and the Clean Power Plan as disproportionately targeting the coal industry.

“The Supreme Court’s ruling today that the EPA has no authority to ignore the costs of its regulation will have far-reaching consequences for the agency’s many other overly expensive rules, including those it plans to enact as part of its effort to cripple West Virginia coal,” West Virginia Attorney General Patrick Morrisey said.

West Virginia was part of a group of 21 states involved in challenging the EPA MATS rule.

“This decision is a strong rebuke of the EPA’s overreach and will force the Obama Administration to consider the true costs to businesses and families of complying with these burdensome regulations,” U.S. Rep. David McKinley, R-W.Va., said. “Unfortunately, the ruling is too late to stop the damage from this regulation and save the coal-fired power plants that have already been shut down. States and utilities considering complying with the EPA’s other economically destructive regulations should take notice of this decision.”

U.S. Sen. Joe Manchin, D-W.Va., said the EPA is imposing “regulations one after another regardless of the impact on our economy” and praised the nation’s highest court for “recognizing that the agency must take costs into account.”

U.S. Sen. Shelley Moore Capito, R-W.Va., said the decision to uphold a challenge to the MATS rule — even though many coal-fired plants have already shuttered in response to the rule — is an example of why “states should not be forced to bear the brunt of other costly EPA regulations before legal challenges are complete.”

Bill Raney, president of the West Virginia Coal Association, said Monday’s ruling is a victory for West Virginians who have been arguing for years that the EPA hasn’t considered the economic impacts of its regulations.

“We think it’s very positive. The EPA has thumbed their nose at our congressional delegates and our governor — as well as governors of other states — when they asked for them to give an economic impact statement to the rules that they were propagating,” Raney said. “Hopefully, they’re going to look deeply enough and look into the eyes of the best coal miners in the world and finally realize that we need to balance this thing.”

But James Van Nostrand, a WVU law professor and head of the college’s Center for Energy and Sustainable Development, said Monday’s ruling — in practical terms — is unlikely to have a huge impact.

“It might be a moral victory, but it has no practical effect in terms of changing anything,” Van Nostrand said.

The Supreme Court decision Monday did not strike down the EPA’s authority to regulate mercury and other toxic emissions under the Clean Air Act.

Van Nostrand said the ruling overturns a D.C. Circuit Court decision and sends the matter back to that court to determine whether to vacate the EPA’s rule.

“The D.C. Circuit Court could vacate it, but their practice has not been to vacate a rule in the meantime, because mercury is a hazardous air pollutant and you have to have something in place,” Van Nostrand said. “It’s really important to know that the rule remains in place. It has not been vacated.”

Van Nostrand said he anticipates the court requiring the EPA to go back and rewrite the rule to explicitly take the cost of implementation into account. But he said a revised version of the rule is still likely to take effect — and likely to lead to more legal challenges.

“The EPA will come up with a revised order, which I think will address the cost issue,” Van Nostrand said. “We’re going to end up in the exact same place, just further down the road.”

Stephanie Walton, a FirstEnergy spokeswoman, said the ruling won’t have any impact on the utility’s generation fleet for the time being.

“I think the first and most important point is that we will not be reopening any plants that were closed due to cost of compliance with MATS,” Walton said. “Deactivating power plants is a very expensive process, and once they’re closed, they’re very difficult to reopen.”

When the MATS rule was finalized in 2012, FirstEnergy announced it would be closing nine coal-fired power plants as a result of the rule and other regulations, Walton said. When MATS took effect in April of this year, FirstEnergy closed all nine of those plants, including three in West Virginia, she said.

Six coal-fired power plants remain in FirstEnergy’s fleet, including the Harrison Power Station, Walton said. Those plants are all on track to be MATS-compliant by the EPA’s extended deadline of 2016, she said.

What long-term impact Monday’s ruling has on utilities will depend greatly on what the D.C. Circuit Court decides from here, Walton said.

Raney acknowledged that the MATS rule has already had a significant impact on coal-fired generation across the country.

“You’d love to think that some of that is going to be reversed as a result of this. We don’t know the answer to that,” Raney said. “At least there’s a possibility that some of these plants that were going to close, they won’t have to close, because you’re asking the EPA to take a look at the economics of what they’re doing.”