Roberts’ refusal to halt rule means no ‘open season’ on EPA

Source: Robin Bravender, E&E reporter • Posted: Friday, March 4, 2016

Chief Justice John Roberts signaled today that the Supreme Court won’t intervene to block every major environmental rule that comes before it.

Roberts took swift action to rebuff a request from 20 states to put a major U.S. EPA mercury rule on hold. The states’ request, led by Michigan, was widely seen as an attempt to test the court’s willingness to freeze controversial EPA regulations after the justices recently agreed to halt the agency’s Clean Power Plan.

“It shows that the court is not going to necessarily have the appetite to do this all the time,” said James Rubin, an attorney at Dorsey & Whitney LLP and former environmental lawyer at the Justice Department. “It wasn’t open season” for challenges to lower courts’ environmental rulings.

Environmentalists and other supporters of the mercury rule lauded Roberts’ quick dismissal of the states’ petition.

“It is time to end this damaging litigation and to protect our children from the poisons in our air and water,” said Vickie Patton, general counsel for the Environmental Defense Fund.

The Mercury and Air Toxics Standards, or MATS, rule issued by EPA in December 2011 requires coal-burning power plants to reduce emissions of mercury, lead, arsenic and other hazardous air pollutants. Coal plants are the country’s largest emitters of mercury, and EPA said the standards would prevent 11,000 premature deaths a year and yield up to $90 billion in health benefits. The rule was expected to cost $9.6 billion per year.

The mercury standards “are safeguarding millions of American children from poisons such as mercury, arsenic and acid gases,” Patton said. “While the children of Flint [in Michigan] were being poisoned by lead in drinking water, the Michigan attorney general was using hard-earned taxpayer dollars to try to block our nation’s first-ever and long-overdue limits on the air toxics discharged by coal plants.”

The states challenging the rule were Alabama, Alaska, Arizona, Arkansas, Idaho, Iowa, Kansas, Kentucky, Michigan, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, Texas, Utah, West Virginia and Wyoming.

They argued that a Supreme Court decision last year finding that EPA failed to properly consider costs meant the agency never had the authority to impose the regulation in the first place. The states had warned in their petition to Roberts that if the justices refused to block the rule, their previous 5-4 decision in the mercury case would “be thwarted.”

“Because this court’s ruling means that EPA never acquired authority to impose this rule, this court should stay the unauthorized rule” pending a petition asking that the rule be vacated in its entirety, they wrote (E&E Daily, Feb. 24).

A spokeswoman for Michigan Attorney General Bill Schuette (R) did not respond to a request for comment about the states’ next steps.

Supreme Court justices last year found the mercury rule illegal and sent it back to the U.S. Court of Appeals for the District of Columbia Circuit for further action. That court in December agreed to send the mercury rule back to EPA so the agency could tweak its cost analysis in light of high court’s ruling. The agency has told the court it plans to complete its new cost finding this spring.

EPA’s state and environmental defenders yesterday questioned the timing of the states’ stay request in a document sent to Roberts. “EPA is expected to reach a final (and judicially reviewable) decision” within weeks to justify the costs underpinning the rule, they wrote (E&ENews PM, March 2).

Roberts — who handles stay applications for D.C. Circuit actions — acted alone in rejecting the request, according to the court’s Public Information Office. Little was made public about his decision. No formal order was issued by Roberts; he merely denied the application from the states.

Under court procedures, when a justice acts alone to deny such a request, petitioners can renew the application to any other justice — and could continue until a majority of the court has denied the application. But it’s unlikely a majority of the justices would intervene without the support of Roberts and with the vacancy created by the death of Justice Antonin Scalia.

In its decision to stay the Clean Power Plan, the court split 5-4 along ideological lines, with the court’s liberal wing voting to oppose the stay. If Roberts and those four liberal justices oppose the mercury rule stay, only three justices remain, and it’s unclear whether that trio of conservative justices would want to halt the mercury regulation.

Had Roberts acted alone to grant the stay, the court’s liberal branch may have had trouble getting a fifth vote to overrule his decision.

“This returns us to the situation we were in before” the Clean Power Plan was blocked, said Rubin. The stay “remedy exists out there for the right rules, the right context,” but Roberts’ move today indicates the Supreme Court “will consider each claim on its own, and it must not have seen the same need” as it did when halting the Clean Power Plan.