Suzanne Murray in Greenwire: Mercury Ruling Sets Up Legal 'Crapshoot' on Clean Power Plan


Yesterday's Supreme Court ruling that U.S. EPA should have considered costs before issuing its mercury air standards for power plants left one major question unanswered: how the decision could affect coal companies' first legal challenges to President Obama's forthcoming greenhouse gas limits for power plants.

In a 5-4 ruling, the high court's conservative wing said EPA should have considered the Mercury and Air Toxics Standards' $9.6 billion price tag before going ahead with the regulations (Greenwire, June 29).

But the court did not vacate the rule, remanding that decision for a lower court...

Technically, the rule should go back to the same three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit that upheld the mercury rule in a 2-1 April 2014 ruling. Yesterday's Supreme Court ruling reversed that decision. The panel will likely be quickly pressed to decide whether to vacate the rule while EPA reconsiders the cost issue. Vacating the rule could, in theory, help EPA with the inevitable challenges to the greenhouse gas regulations...

Suzanne Murray, a former EPA regional general counsel, countered that the agency's legal team could see "slow walking" the vacate issue as advantageous.

"There may be some benefits to the Clean Power Plan to letting this sit or be acted," said Murray, now a partner at the firm Haynes and Boone. "During that time, you have a vacuum. And during that time, it makes the Clean Power Plan easier to defend."

Excerpted from Greenwire. To read the full article, click here.

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