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Goodbye Mercury Rule, Hello Clean Power Plan?

By Brian Potts and Abigail Barnes

The Environmental Protection Agency (EPA) suffered a major setback on Monday after the U.S. Supreme Court doled out its ruling in Michigan v. EPA. In a 5-4 decision—penned by the always jocular Justice Antonin Scalia—the Court found that the EPA’s decision to ignore the $10 billion dollar annual price tag of its Mercury and Air Toxics Standard for power plants was unreasonable. 

As Scalia wrote, “The Agency must consider cost—including, most importantly, cost of compliance—before deciding whether regulation is appropriate and necessary.” 

Ironically, this decision could pave the way for another landmark (and nearly just as expensive) EPA regulation, the Clean Power Plan—but only if the agency lets its beloved mercury rule die on the vine.

See although the Supreme Court’s decision clearly established that the EPA’s mercury rule was illegally implemented, the high court did not vacate the rule. They left that up to the lower court, the D.C. Circuit Court of Appeals. 

What should we expect from the EPA in this situation? 

The EPA’s predicted ask, given the liberal-leanings of the lower court judges (the same panel that originally decided the case), would be to leave the mercury rule in place as the agency attempts to fix it. But is that the best way forward? 

Later this summer the EPA will be finalizing the Clean Power Plan, a rule aiming to revamp the country’s electric sector in order to slash greenhouse gas emissions. One of the challengers’ primary legal arguments against the Plan is that the Clean Air Act does not allow the EPA to adopt greenhouse gas rules for power plants if those plants are already subject to hazardous air pollutant regulations—like the EPA’s mercury rule. In other words, no double-regulation. So with its ruling in Michigan v. EPA, the Supreme Court might have just removed one of the most powerful legal arguments against the Clean Power Plan—but only if the D.C. Circuit vacates the rule.


EPA Administrator Gina McCarthy (CHRIS KLEPONIS/AFP/Getty Images)

This might seem like a tough decision for the EPA, but because the mercury rule has been (illegally) in effect since 2011, close to 90% of pollution controls needed to comply with it have already been installed. Maybe that’s why EPA Administrator, Gina McCarthy, wasn’t too fazed with the Court’s decision. “Most [power plants] are already in compliance [with the mercury rule],” she said in a recent interview, “investments have been made…and [the EPA is] still going to get at the toxic pollution from these facilities.” Plus, while the agency must now go back and consider the costs of regulating mercury and other air pollutants, once it does that, the EPA can just re-issue the rule.

EPA’s pride could end up being the Clean Power Plan’s downfall

When the EPA loses like this, it usually tries to get the lower court to keep its rule in place while it goes back to the drawing board. A similar situation happened a few years ago with the EPA’s Clean Air Interstate Rule: The D.C. Circuit determined that the rule was illegal, but left it in place while the EPA drafted a new version.

The question remains: Will the EPA ask the D.C. Circuit to keep its mercury rule in effect for the next few years? Or will the agency risk losing a little face and support vacating it in order to increase the Clean Power Plan’s odds of making it through the court?

Based on the EPA’s track record, we suspect it will do the former.

Brian H. Potts's picture

Thank Brian H. for the Post!

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