The Future of Coal-Fired Power Plant Regulation

John Simon, Associate Member, University of Cincinnati Law Review

Michigan v. E.P.A.

In 2015, the Supreme Court of the United States heard oral arguments in Michigan v. E.P.A., a case involving a challenge to the EPA’s regulatory standards imposed under the Obama administration.

Under the Clean Air Act, the EPA has the authority to regulate stationary and moving sources of air pollution through various programs; in 1990, the Clean Air Act Amendments established the National Emissions Standards for Hazardous Air Pollutants Program (NESHAP) which regulates stationary source emissions for “‘hazardous air pollutants.’”[1] While the program generally applies depending upon a source’s total pollution, Congress established a special procedure for coal-fired power plants; Congress directed the EPA to conduct “‘a study of the hazards to public health reasonably anticipated to occur as a result of emissions by [power plants] of [hazardous air pollutants] after imposition of the requirements of this chapter.’”[2] If the EPA were to determine, after completion of the study, that regulation is “appropriate and necessary” then it “‘shall regulate [power plants] under [§ 7412].’”[3]

In 1998, the EPA concluded the study, and, in 2000, the EPA determined that regulation of coal-fired power plants was “appropriate and necessary.”[4] The EPA reaffirmed this determination in 2012 finding that regulation was appropriate because coal-fired power plants emit mercury and other harmful air pollutants that pose a threat to human health and the environment, and power plant emissions can be controlled.[5] Further, the EPA determined that regulation was necessary because the Clean Air Act’s other regulatory plans did not offer adequate protection.[6]

Under an Executive Order, the EPA issued a Regulatory Impact Analysis (RIA) along with the regulations.[7] The RIA estimated that the regulations would require power plants to spend approximately $9.7 billion annually while the quantifiable amount of benefits totaled between $4 million and $6 million.[8] The EPA noted other ancillary benefits—including reducing the emissions of particulate matter and sulfur dioxide—which increased the quantifiable benefits to $37 billion to $90 billion.[9] However, the EPA conceded that the RIA did not impact its decision to regulate power plants.[10]

The Court ultimately determined that Federal administrative agencies are required to engage in “reasoned decision making.”[11] Further, the Court held that “[t]he Agency must consider cost—including, most importantly, cost of compliance—before deciding whether regulation is appropriate and necessary.”[12] Therefore, the EPA’s failure to consider cost when deciding to regulating power plants was unreasonable.

The E.P.A.’s Recently Proposed Plan

On December 28, 2018, the EPA announced its proposed plan to implement new rules regarding the regulation of hazardous air pollutants. Following the Supreme Court’s decision in Michigan v. E.P.A., the EPA concluded that the Obama administration’s regulation of hazardous air pollutant emissions from power plants were too costly to be considered “appropriate and necessary.”[13]

While the proposed rules will not repeal existing EPA rules, the proposed rules will make the creation of new regulations more challenging.[14] In a statement written by Howard Learner, executive director of the Environmental Law and Policy Center, “The Trump EPA’s proposal undermines its Mercury and Air Toxic Standards (MATS) by retroactively recalculating the costs and benefits of the rule, which most utilities have already fully implemented. The misguided proposed changes leave MATS legally vulnerable and foolishly make it harder to strengthen mercury pollution reduction standards in the future…”[15] Other groups, including the Murray Energy Corporation and the National Mining Association, have praised the proposed rule.[16]

The proposed rule will be published in the Federal Register for sixty days so that the public may submit comments.[17] After the sixty-day period, a final rule will be issued.[18]


[1] Michigan v. E.P.A., 135 S. Ct. 2699, 2704 (2015).

[2] Id. at 2705.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id. at 2607.

[9] Id.

[10] Id.

[11] Id.

[12] Id. at 2711.

[13] Lisa Friedman, New E.P.A. Plan Could Free Coal Plants to Release More Mercury Into the Air, The New York Times (Dec. 28, 2018), https://www.nytimes.com/2018/12/28/climate/mercury-coal-pollution-regulations.html.

[14] Id.

[15] EPA’s Proposed Weakening of Mercury Pollution Reduction Standards (MATS) Threatens Children’s and Women’s Health, and Great Lakes Fisheries, Environmental Law & Policy Center (Dec. 28, 2018), http://elpc.org/newsroom/press-releases/epas-proposed-weakening-mercury-pollution-reduction-standards-mats-threatens-childrens-womens-health-great-lakes-fisheries/.

[16] Friedman, supra note, 13.

[17] Id.

[18] Id.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s