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Utility MATS Rule Upheld (4/21/14)

On April 15, 2014, the D.C. Circuit Court of Appeals upheld EPA's Mercury and Air Toxics (MATS) rule.  The Court consolidated approximately 30 judicial petitions and captioned the case White Stallion Energy Center v. Environmental Protection Agency. The Court basically dismissed all of the judicial petitions (industry’s as well as the environmental groups’) and affirmed the MATS Rule.

The most fundamental question before the Court was whether EPA reasonably established that it was appropriate and necessary to regulate utilities under Section 112 of the Clean Air Act.  However, the case also included a variety of other challenges to the rule such as:

  • Did EPA appropriately established the mercury MACT floor?

  • Were the lignite emission limits properly determined?

  • Was EPA within it is authority to regulate all HAPS emissions instead of just the ones it found to pose a health risk?

  • Should the Agency have established both major and area source categories?

  • Should a less stringent health-based standard have been established for acid gases?

  • Should a separate source category have been defined for circulating fluidized bed units?

  • Are the use of emissions averaging, quarterly testing and the LEE provisions appropriate for monitoring compliance?

For all issues addressed, the Court showed significant deference to EPA and held that the Agency's positions or decisions were reasonably (or at least permissibly) established.

Judge Kavanaugh wrote an interesting dissenting opinion in which he explained why he believed EPA erred in failing to consider cost as an integral part of the Agency’s “appropriate” decision.  Remember that 112(n)(1)(A) of the Clean Air Act directs EPA to regulate electric utility generating units under this section (i.e., 112) if the Administrator finds such regulation is “appropriate and necessary.”  In sum, Judge Kavanaugh questioned how any government agency could ever decide a regulation was appropriate without understanding how much the rule would cost to implement.

A copy of the Court's decision may be downloaded from our FTP library.

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Last Revised: February 16, 2016