Encouraged by the US Supreme Court's stay (in February this year) of the Environmental Protection Agency's Clean Power Plan, a coalition of 20 states has asked the high court to stay another disputed agency rule - the Mercury and Air Toxics Standards (MATS) rule.
'Unless this court stays or enjoins further operation of the Mercury and Air Toxics rule, [its] recent decision in Michigan v EPA will be thwarted' states the filing. 'A stay or injunction is appropriate because this court has already held that the finding on which the rule rests in unlawful and beyond EPA's statutory authority.'
Michigan Attorney General Bill Schuette commented: "Last year, the US Supreme Court ruled that the EPA must follow federal law and consider costs before implementing new regulations on job creators and American families.We are simply asking the court to enforce its ruling and require the EPA to follow the law like everyone else."
These are references to two actions in 2015, the result of which was to keep MATS in effect while the EPA prepared its cost findings for public release. On June 29 last year, in Michigan v EPA, the US Supreme Court decided 5-4 that the EPA interpreted the Clean Air Act unreasonably when it deemed cost irrelevant to the statutory decision of whether regulating power plants was 'appropriate and necessary.' In the high court's majority opinion, Justice Antonin Scalia said that it was not appropriate for the EPA 'to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.'
The Supreme Court, however, did not vacate the rule. Instead, it reversed an April 2014 judgment by the DC Circuit that upheld the EPA's February 2012 finalised standards. The appeals court had said in that 2-1 decision that the agency is not required to take costs into account when it promulgates rules that are 'appropriate and necessary' to address hazards to public health.
In response to the Supreme Court's ruling, the EPA said in a November 20, 2015, supplemental that it had conducted a benefit/cost analysis for the rule. Significantly, in that notice, the agency called for public comments on a proposal to declare that it would have reached the same conclusion if it had completed the analysis before making the 'appropriate and necessary' finding rather than after it began the rule-making process.
On December 15, 2015, however, without providing an explanation, the DC Circuit ordered in White Stallion Energy Center LLC v EPA that the rule be remanded to EPA without vacating the final rule, meaning that the rule would remain in effect while the agency worked on its cost finding. This is expected to be revealed on or before April 15, 2016.
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