It is difficult to decide which was worse: (1) the media’s reporting of the Court’s decision or (2) the decision itself. For example, a Washington Post article stated that the Court struck down Bush administration policy allowing some power plants to exceed mercury emission levels, ruling that the government failed to consider the effect on public health and the environment. First, EPA’s Clean Air Mercury Rule (CAMR) is a regulation – not a “Bush administration policy.” More importantly, the Court did not even consider public health or environmental issues – much less rule on them. A North Carolina paper wrote that the Court said the Bush administration ignored the law three years ago when it imposed less stringent requirements on power plants to reduce mercury pollution. In point of fact, the Court neither mentions the Bush administration nor does it deal with the stringency of CAMR.
What did the Court really say? Basically, the Court agreed with the environmental Petitioners’ challenge, which was that EPA could not legally remove electric generating units (EGUs) from the section 112(c) list of source categories of hazardous air pollutants (HAPs) without following the delisting procedure described in section 112c(9). Since, in the opinion of this Court, EPA inappropriately removed EGUs from the section 112(c) list, CAMR must be vacated because it was developed under the provisions of section 111(d). The D.C. Circuit Court’s ruling was on a very narrow issue – clearly not the sweeping repudiation that the media has so zealously reported. EPA defended its action by explaining that the Agency reversed its December 2000 “appropriate and necessary” finding. That is, since EPA used the “appropriate and necessary” finding to put EGUs on the section 112 list in 2000, a negative “appropriate and necessary” finding in 2004 required the Agency to remove EGUs from the list.
The Utility Air Regulatory Group (UARG) intervened and supported EPA’s defense. Moreover, UARG argued that the section 112(c) listing was not binding because of lack of notice and comment rulemaking, and thus EPA is not required to comply with the section 112(c)(9) delisting approach. In a most perplexing statement, the Court ruled it need not consider the intervener’s argument because EPA steadfastly refused to join it. The Court’s decision may raise more questions than it answers, especially with respect to what happens next. It is interesting to note how environmental groups have praised the Court’s decision on CAMR. It is interesting because this decision vacates the only nationwide control of mercury emissions from EGUs!
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