On June 29, 2015, the United States Supreme Court ruled that EPA erred when it failed to take cost into account in evaluating whether it was “appropriate and necessary” to regulate hazardous air pollutants (mercury) from coal- and oil-fired electric generating units. See Michigan v. EPA, No. 14-46 (June 29, 20150). The rule, known commonly as the “Mercury and Air Toxics Standards” or “MATS” rule, was remanded to EPA for additional evaluation without vacating the rule itself.
On December 1, 2015, in response to the Supreme Court’s ruling, EPA published a proposed supplemental finding and companion legal memorandum. To the surprise of absolutely no one, on April 14, 2016, EPA Administrator, Gina McCarthy, signed for publication in the Federal Register a supplemental finding that it is appropriate and necessary to regulate hazardous air pollutant from coal-and oil-fired electric generating units. EPA’s supplemental finding notes that it has used several cost metrics specific to the power sector to determine whether the costs of the MATS rule are reasonable. Predictably, EPA concluded that the cost of the MATS rule is reasonable and that no new information provided during the supplemental period provided otherwise.
This article was authored by Robert G. McLusky, Jackson Kelly PLLC.