States Coalition Aims to Defend Obama-Era Mercury Limits (1)

June 22, 2020, 11:10 PM; Updated: June 23, 2020, 1:31 PM

California and Massachusetts are part of a coalition of 16 Democratic states and New York City that are gearing up to defend federal mercury pollution standards for power plants against a challenge mounted a month ago by a Colorado-based coal company.

Massachusetts Attorney General Maura Healey (D) on behalf of the coalition filed a motion to intervene in a lawsuit filed May 22 by Westmoreland Mining Holdings LLC.

The company sued the Environmental Protection Agency for maintaining power plant standards on releases of mercury and other toxic air pollutants, despite gutting its legal rationale.

The legal rationale in question is the “appropriate and necessary” finding that the Clean Air Act requires the EPA to establish before setting limits on power plants. The EPA in April finalized a rule (RIN: 2060-AT99) that withdrew the rationale it used in 2012 to set the Mercury and Air Toxics Standards, or MATS.

EPA officials justified the April action by concluding that the costs of capturing mercury, a neurotoxin, and other toxic air pollutants weren’t justified by the direct health benefits.

In its petition, the coalition said it wants to intervene because the agency “cannot be expected to faithfully defend the standards in court” following its decision on MATS.

‘Critically Important’

Healey said the Westmoreland lawsuit is nothing other than the coal industry’s efforts to undermine “a critically important regulation” that protects Americans’ health from dangerous power plant emissions of mercury and other air toxic pollutants, as well as fine airborne particle pollution that has been linked to increased Covid-19 deaths in the nation’s most vulnerable communities.

“We are seeking to defend these important standards and our right to breathe clean air,” Healey said in a statement Tuesday.

The EPA said Tuesday it doesn’t comment on pending litigation, adding that the revised cost-benefit analysis properly accounts for direct costs of compliance and direct health benefits of capturing mercury.

“Those power plants remain subject to and must comply with the mercury emissions standards of the MATS rule, which remains fully in effect notwithstanding the revised cost-benefit analysis,” the agency said.

Another Coalition

The proposed intervention follows a coalition of nearly two dozen civil rights, environmental and health groups that have intervened in the case to protect the 2012 standards. The motion is unopposed, though, and is expected to be approved by the court.

Like the environmental groups, the states said they would mount a separate challenge against the Trump EPA’s rule that yanked the legal basis of the 2012 standards.

In Monday’s action, California state attorney general Xavier Becerra (D) joined the Democratic attorneys general of Massachusetts, Connecticut, Delaware, Illinois, Maine, Maryland, Michigan, Minnesota, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, and Vermont, as well as New York City.

The coalition is similar to the one challenging the EPA’s rewrite of the rule circumscribing Clean Water Act protections over the nation’s water bodies and wetlands.

The case is Westmoreland Mining Holdings LLC v. EPA, D.C. Cir., No. 20-01160, petition to intervene 6/22/20.

(Updated June 22 story with comments from EPA and Healey.)

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bloombergindustry.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com

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