Supreme Court ruled that EPA's didn't take cost to power plants early enough when deciding to limit mercury emissions.
Supreme Court ruled that EPA didn’t take cost to power plants when deciding to limit mercury emissions.
Supreme Court ruled that EPA didn’t take cost to power plants when deciding to limit mercury emissions.

Our busy Supreme Court handed down another monumental ruling this week kicking back the Environmental Protection Agency’s (EPA) first stab at reducing coal-fired electricity mercury pollution.

This SCOTUS ruling may seem wonky, even a little boring, but setting ‘acceptable’ levels of pollution (isn’t that an oxymoron?) is critical for health, and also for our climate. It’s also interesting to understand how big federal emissions regulations play out locally in Charm City’s own coal-fired power plants, and the air you and your family breathe.

Under the Clean Air Act, the EPA sets limits for six chemical pollutants that are emitted when our country’s 600 or so electrical plants burn coal. But, U.S. power plants can spew unlimited amounts of mercury, arsenic, heavy metals and acid gases. The power plant industry has avoided cleaning up their mercury pollution, unlike municipal and medical waste incinerators (see graph below.)

The other two mercury polluters nearly zeroed out their mercury pollution. Why do power plants get a pass? Source: EPA

These nasty chemical emissions are unhealthy for humans to breathe, and can be deadly for people with asthma, suppressed immune systems, or chronic diseases. Women of child bearing age are especially on alert for mercury contamination because this neurotoxin is passed to unborn fetuses and alters neurodevelopment. U.S. air pollution yearly health stats are sobering: 11,000 premature deaths, 5,000 cardiac arrests, and 130,000 hospital visits are directly linked to American’s breathing contaminated air. The EPA estimated $37 to $90 billion in health-related cost savings from lowering mercury emissions.

The EPA’s mercury limits focused on the 40 percent of U.S. power plants that still have not modernized their pollution controls. EPA’s estimated cost: $10 billion in power plant upgrades. Michigan and 19 states sued the EPA claiming that updating to more modern pollution controls is just too expensive.

The 5-4 SCOTUS decision was more procedural in nature, and it did not invalidate the EPA’s purvey in limiting mercury. SCOTUS said the EPA didn’t consider costs to industry before they chose to limit mercury.  Initially focusing on public health benefits, the EPA did an extensive cost-benefit analysis after they chose to limit mercury. 

Here’s a key sentence in Justice Scalia’s dissent: “It is not rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.”

Is it rational to ask certain industries to clean up their act, but not energy? 

Cash is king, and here’s where federal and state laws intersect. It’s important to know that federal pollution guidelines are executed at the state level.

Not only are a good chunk of the dinosaur-poorly-pollution-controlled electricity plants just upwind from Baltimore in the Ohio Valley, several are right here in Baltimore. It’s estimated that two-thirds of our pollution problem is from Ohio Valley’s pollution blowing our way. Fixing those plants would help our air. 

In 2006, Maryland’s Healthy Air Act forced Maryland’s power plants to invest $2.6 billion in better controls and most pollutant levels fell dramatically, including Mercury. But you should know that ozone didn’t fall as expected. An unintended glitch in this law is that Maryland’s smaller power plants that are used on high demand days, like our Dundalk Crane Plant built in 1956, got a pass on modernizing pollution control technology. Upgrading our smaller local plants would also improve our air quality. 

Using the same cash-is-king argument as the states that sued the EPA’s over mercury limits, Baltimore’s local power plant companies got in Hogan’s ear and moaned about how expensive the new ‘smog rules’ were that O’Malley’s team finalized. Hogan pulled the finalized ‘smog’ rules that would have forced our smaller Baltimore coal-fired power plants to upgrade pollution controls. Yours truly even wrote a Baltimore Sun Op-Ed about our crappy air and why better smog regulations are needed. 

Pay now, or pay later – that’s where we are today.  Coal-fired power plants are emitting too many chemicals and gases that make lots of people sick and also cause climate change. Power plant operators and the coal industry are fighting back trying to preserve their profitability and jobs. We are at a critical junction where we collectively clean up our act, and choose sustainable energy, or we’ll just cough our way to an unknown climate that surely will be very expensive.

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Laurel Peltier

Laurel Peltier writes the environment GreenLaurel column every Thursday in the Baltimore Fishbowl.