Attorney General: Halt federal regulation of toxic mercury

Coloradans may soon be breathing a little less easily, if Attorney General Cynthia Coffman has her way.

Coffman filed a brief with the U.S. Supreme Court on Friday, April 15  in support of a proposed lawsuit that would halt the Environmental Protection Agency’s regulation of power plant mercury emissions.

Twenty states have petitioned the Supreme Court to consider their case, claiming that the EPA’s Mercury and Air Toxics Standards, or MATS, should have been scrapped for failing to consider a cost-benefit analysis.

Coffman’s brief both angered and befuddled environmentalists.

“It’s the head-scratcher of the day,” said Pete Maysmith, director of Conservation Colorado, an environmental advocacy organization. “Mercury is a potent toxin that I think we all know is terrible, for public health in general and certainly for our kids in particular,” he said. “What is the argument that more mercury in our air is better for Coloradans?”

The fact that Colorado has had its own mercury regulations since 2014 makes the Attorney General’s stance even more puzzling. Coal plants here have to capture 80 percent or more of all mercury they produce. But mercury emissions, of course, don’t obey state borders. Why would Coffman not want the federal government to hold our neighboring states to a similar standard?

“We’ve already taken major steps down this path to clean our air of mercury,” said Maysmith. “If we are upwind of a state that is burning coal and releasing air toxins and mercury, our kids and families are still at risk here in Colorado.”

The attorney general’s office declined to comment beyond offering a copy of the brief itself.

“I believe the brief stands on its own,” said Coffman’s communications director Roger Hudson.

The lawsuit follows a previous suit from 2015, Michigan v. EPA, in which 23 states claimed the federal environmental agency had overstepped its authority when it failed to consider the costs of compliance associated with the mercury rule.

In a landmark win for the coal industry, the U.S. Supreme Court ruled 5-4 in favor of the states: Costs must be considered as part of any environmental regulation, the late Antonin Scalia argued.

The ruling was a boon for coal. Both Peabody and Arch Coal saw an immediate surge in stock prices. But what happened next angered the states, leading them to file the current lawsuit.

As law professor Fred Cheever points out, the EPA’s eventual completion of a cost/benefit analysis was never the states’ major demand.

“The EPA is perfectly happy to do a cost/benefit analysis,” said Cheever, who teaches environmental and natural resource law at the University of Denver’s Sturm College of Law. “It does them all the time.”

In fact, the EPA released that analysis on April 15, the same day Coffman filed her brief. (It found that the environmental and health benefits outweigh the costs, both to industry and to consumers.)

Rather, the plaintiff states wanted to punish the EPA for omitting the analysis in the first place. In their view, when the Supreme Court ruled against the EPA, the agency should have been sent back to the drawing board, and the mercury regulations should have been “vacated” or voided.

Instead, after the ruling, a lower court — the D.C. Circuit — simply ordered the EPA to do its job and consider the costs, allowing the mercury regulations to remain in place while it did so.

In short, the EPA’s mercury rule was deemed unlawful, but was left on the books while necessary changes were made.

Those who want national protections against global warming may feel that the ends justify the means, but Coffman and the rest of the plaintiff states disagree.

“Regardless of how serious the problem an administrative agency seeks to address… it may not exercise its authority in a manner that is inconsistent with the administrative structure that Congress enacted into law,” Coffman wrote in her brief, quoting a 2000 case that pitted the EPA against a large tobacco corporation.

In short, the attorney general has added her support to a lawsuit which, if taken on and upheld, would force the EPA to shut down regulations that the courts deem unfinished or otherwise unlawful.

Attorney Cheever says there’s really one main target for such an argument: President Obama’s Clean Power Plan.

Coffman is decidedly against the Clean Power Plan. Late last year, against Gov. John Hickenlooper’s wishes, she joined a lawsuit against it. This case, Cheever says, is likely just another tactic to fight it.

“The Clean Power Plan is unlike anything that anybody has ever done before, so there’s a very good chance that various courts of appeals will find that parts of the rule are not legally acceptable,” said Cheever. “So they’ll say, ‘Woah, this part’s fine, this part’s fine, but this part really isn’t,” he said.

“What Cynthia Coffman is trying to do is say that in that case, the whole thing — the entire Clean Power Plan — would go away until the legal infirmity that the court of appeals had found was fixed.”

The Obama administration has until May 6 to comment on the case, after which SCOTUS will decide whether to take it on.

If the high court does rule in favor of the states — and the coal industry — again this time around, it will have profound consequences on current and future environmental regulations.

Cheever says a strong legal precedent makes that very unlikely.

“Are they going to win? No way,” he said.

But in the meantime, Coffman’s support of the lawsuit sends a message that environmental activists can’t abide.

“[Attorney General] Coffman’s priorities are woefully out of step with those of Colorado voters, who will now see how far one politician is willing to go in putting politics over people,” Maysmith said.

Photo credit: snowpeak, Wikimedia Commons