The Supreme Court’s mercury poisoning

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There’s been a lot of excitement about the U.S. Supreme Court as it wrapped up its 2014-15 session, and understandably so. On Friday, many people took to the streets in celebration when the High Court ruled that same-sex marriage is now legal in all 50 states. In fact, that ruling was held up as a sign that the nine justices were, as a whole, becoming more liberal — building upon two major decisions from the day before that upheld and arguably strengthened the Affordable Care Act and also reaffirmed the key federal fair-housing law.

But on the whole, the Supreme Court under Chief Justice John Roberts — while occasionally expanding civil liberties on social issues or free-speech matters — has been almost ruthlessly pro-business. It was this court, after all, which issued the Citizens United ruling that allowed corporations to sink unlimited amounts of so-called “dark money” into American elections. With that in mind, those of us who advocate on environmental issues are very wary when the Supreme Court wades into matters concerning issues such as regulating polluters — and what happened this week was a stark reminder of exactly what we worry about.

In gridlocked Washington, it’s become very difficult for government to place meaningful curbs on pollution. Since the 2010 elections, Congress has been controlled by a GOP majority with a stated goal of reducing the burdens of regulation on Big Business, not on strengthening environmental laws. That job has fallen — with mixed results — to the Obama administration and to regulatory fiat. With no other alternative, agencies like the U.S. Environmental Protection Agency are seeking to deal with complex problems like greenhouse gas emissions through the lengthy rulemaking process. But these rules are invariably subject to lawsuits by businesses and by conservative-state officials — umpired by a judiciary that leans to the right.

When it comes to mercury pollution from power plants, which has been linked to infant mortality in surrounding communities, the EPA has been trying to impose restrictions for about two decades. This week, the Supreme Court threw up a significant roadblock:

Power plants may continue to be able to emit unlimited mercury, arsenic, and other pollutants thanks to the Supreme Court, which on Monday took steps toward invalidating the first-ever U.S. regulations to limit toxic heavy metal pollution from coal and oil-fired plants.

In a 5-4 ruling, the Supreme Court found fault with the Environmental Protection Agency’s Mercury and Air Toxic Standards, commonly referred to as MATS.

The EPA had been trying to implement a rule that cut down on toxic mercury pollution for more than two decades. But the Supreme Court majority opinion, written by Justice Antonin Scalia, said the EPA acted unlawfully when it failed to consider how much the regulation would cost the power industry before deciding to craft the rule.

The health impact will be significant:

Coal- and oil-fired power plants are the largest industrial sources of toxic air pollution in the country. Power plants are responsible for 50 percent of all U.S. emissions of mercury, a neurotoxin particularly dangerous to unborn children. If the rule had been allowed to remain in place, the EPA estimated that 11,000 premature deaths would be prevented every year; that IQ loss to children exposed to mercury in the womb would be reduced; and that there would be annual monetized benefits of between $37 billion and $90 billion.

However, Monday’s decision surrounded not health benefits, but cost to industry. The lawsuit, brought by Michigan and 19 other Republican-led states, argued that the EPA didn’t consider how much it would cost the power industry before it decided to craft the regulations.

This is a ruling that is important — and discouraging — in its own right, but which also carries much wider implications. That’s because EPA is currently drafting regulations on limiting carbon pollution from power plants – rules that could be important game changers when it comes to fighting global warming. This skirmish over mercury pollution is just a warm-up for that battle, and a helpful hint that enemies of progress are lurking the corridors of the Supreme Court and elsewhere. And so it’s one more reminder that the best way to control pollution from Big Energy’s power plants is to phase them out, and replace fossil fuels with renewable energy as quickly as possible.

For more on the key Supreme Court ruling on environmental regulations, check out: http://thinkprogress.org/climate/2015/06/29/3673866/supreme-court-epa-mercury-pollution/

I expand on the need to phase out fossil fuels in my new book, Crude Justice: How I Fought Big Oil and Won, and What You Should Know About the New Environmental Attack on America: http://shop.benbellabooks.com/crude-justice

© Stuart H. Smith, LLC 2015 – All Rights Reserved

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Stuart H. Smith is an attorney based in New Orleans fighting major oil companies and other polluters.
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