WASHINGTON Dec 10 The U.S. environmental
regulator argued in court on Tuesday that its rule limiting
mercury and hazardous air pollutants is "appropriate and
necessary," not an improper interpretation of the federal Clean
Air Act as industry groups and some states contend.
The U.S. Court of Appeals for the District of Columbia
Circuit, the second most powerful court in the country behind
the Supreme Court, heard two cases challenging the Environmental
Protection Agency's first rules to crack down on mercury from
the country's fleet of electric generating units.
The EPA's Mercury and Air Toxics Standard (MATS) applies to
1,400 of the country's largest power plants and would come into
force in 2015, or in some cases, 2016.
The MATS rule was finalized in December 2011 but has been
subject to several petitions for reconsideration from groups
ranging from pollution control equipment vendors to power plant
developers. The EPA has said that MATS could prevent up to
11,000 premature deaths, and generate $90 billion in health
benefits, each year.
The three-judge panel asked a number of detailed questions
to the dozen or so lawyers representing the EPA, green groups,
the energy industry and states. The judges appeared skeptical of
industry's argument that the agency did not take the proper
steps to determine that it was "appropriate and necessary" to
regulate those pollutants.
Neil Gordon, Assistant Attorney General for the state
of Michigan, which opposes MATS, said the EPA's interpretation
of the word "appropriate" was unlawful since the agency did not
weigh regulatory costs in its decision to regulate the
But Chief Judge Merrick Garland, a Democratic appointee,
questioned Gordon's argument, saying, "nowhere does Congress
require (the EPA) to evaluate cost" in its determination for the
need to curb mercury and other toxic substances to protect
Arguments at the hearing, held even though the court was
closed for a snow day in Washington DC, lasted nearly four
hours. That was longer than planned and longer than arguments in
similar regulatory cases, observers said.
"The panel was well versed in the case and thoroughly read
the briefing. The questions were really probing around the
salient issues," said John Suttles, a lawyer for the Southern
Environmental Law Center who represented the American Lung
Association as an environmental intervener in the case.
He said the EPA made a strong case that it was within its
rights in regulating the pollutants and that he "didn't really
see an indication that court disagreed with EPA."
But Eric Groten, an industry lawyer specializing in the
Clean Air Act for Vinson & Elkins, said he would be surprised if
the MATS was affirmed in its entirety.
"There were so many issues argued that it increases the
chance the EPA got something wrong," he said.
Groten noted that some judges questioned whether the EPA
"artificially skewed the data" used to set mercury limits by
basing them on the best performing power plants rather than a
The judges, which also included Democratic appointee Judith
Rogers and Republican appointee Brett Kavanaugh, are expected to
take a few months to deliberate and could reach a decision by
February or March.
A conclusion to the case will end years of "pingponging"
between the EPA and the DC Circuit court.
"If the EPA prevails in the MATS case, that moves this set
of standards forward and brings finality, stability and
predictability to the reduction of mercury and other air toxics
for coal plants," said Howard Learner, an attorney and executive
director of the Environmental Law and Policy Center.
Coal industry groups said they hope that the DC Circuit and
the Supreme Court, which heard another air pollution case
Tuesday, strike down both laws, which they claim hurts jobs and
"EPA's overreaching and overzealous rulemaking is crippling
the nation's coal-fueled electric sector and is a threat to our
nation's economy," said Laura Sheehan, a spokeswoman for the
American Coalition for Clean Coal Electricity.
(Reporting by Valerie Volcovici, editing by Ros Krasny and