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August 17,2020
Judicial Review of Mercury and Air Toxics Regulations
Since 1990, the U.S. Environmental Protection Agency's
(EPA's) efforts to regulate mercury and other hazardous air
pollutants (HAPs or airtoxics) emitted by powerplants
have faced numerous legal challenges. The Clean Air Act
(CAA) Amendments of 1990, Pub. L. 101-549, established
a multis tep process for EPA to regulate HAP emis sions
fromfossil fuel-fired electric utility s teamgenerating units
(i.e., powerplants). One of those steps requires EPA to
regulate HAP emis s ions frompower plants if the agency
determines that it is appropriate andnecessaryto do so.
Stakeholders have challenged each ofEPA's appropriate
and necessary findings and other actions to regulate HAP
emissions frompower plants. Mostrecently, litigants are
challenging EPA's May2020 rule that concluded that HAP
emission limits for coal- and oil-fired power plants are not
appropriate and necessary underthe CAA (2020
Appropriate and Necessary (A&N) Rule, 85 Fed. Reg.
31,286, May 22,2020). This rulemaking reversed aprior
EPA-is sued rule that such limits were appropriate and
necessary, though EPA declinedto rescind the emis s ions
limits that were as sociated with the prior finding. This In
Focus reviews thehis tory of litig ation challenging EPA's
treatment ofHAP emis s ions frompower plants under CAA
Section 112 and identifies legal issues that will likely arise
in the current litigation.
CAA Section 112(c) requires EPA to identify and list
categories of HAP pollution sources prior to regulating thei
HAP emis sions. Under Section 112(c)(9), EPA may delis t a
source category only ifthe EPA Administrator makes
specific findings that thehealth and environmentaleffects
of the sources' emis sions in that category do not exceed
certain thresholds.
Congress explicitly required EPA to as sess power plant
HAP emis sions and consider their regulation. Specifically,
CAA Section 112(n) required EPA to studythe hazards to
public health reasonably anticipatedto occur fromHAPs
emitted by power plants oncethe agencyhad impo sedother
CAA requirements, and to regulate those emis sions if the
agency finds suchregulation is appropriate and necessary
after considering the results of the study.
EPA completed the Section 112(n)(1) study in 1998. In
2000, EPA determined thatit was appropriateand
necessaryto regulateHAPs fromcoal- and oil-fired power
plants andlistedthemas a sourceofhazardous pollution
(2000 A&N Finding, 65 Fed. Reg. 79,825, Dec. 20, 2000).
EPA did not issue emission standards as part of the A&N
Finding. In 2001, the U.S. Court of Appeals for the District
of Columbia Circuit (D.C. Circuit) disimissed challenges to
the 2000 A&N Finding, holding that the matter was
nonjusticiable until EPA is sued emis sion standards (UARG
v. EPA,No.01-1074 (D.C. Cir., Jul.26, 2001)).
In 2005, EPA reversedthe2000 A&NFinding (70Fed.
Reg. 15,994, Mar. 29, 2005). EPA concludedthatit had
erred in the 2000 rule by relying solely on environmental
factors without considering thepotential mercury emissions
reductions achievable under other CAA requirements. EPA
determined that in light ofthes e potential reductions,
regulating power plant emissions under Section 112 was
neither appropriate nor necessary, and it delis ted power
plants as asource of HAPemissions.
In place of regulating power plant emis sions under Section
112, EPA issued the Clean Air Mercury Rule (CAMR)
pursuant to CAA Sections 111 (b) for new power plants and
111 (d) for existing powerplants (70Fed. Reg. 28,606, May
18, 2005). CAMR set mercury performance standards for
new power plants and created a voluntary mercury cap-and-
trade programfor new and existing power plants.
In 2008, the D.C. Circuit vacated the 2005 delisting of
powerplants as a HAP sourcebecause EPA failed to make
the health and environmental findings set forth in CAA
Section 112(c)(9) prior to delisting (New Jersey v. EPA,
517 F.3d 574 (D.C. Cir. 2008)). Further, the courtvacated
CAMRas applied to eisting power plants because, as EPA
conceded, ifpower plants are listedunder Section 112(c),
EPA lacked authority to regulate themunder Section
111(d). The court also vacated and remanded CAMR as
applied to new power plants in part because EPA issued the
Section 111 (b) new source performance standards based on
the erroneous vital as sunption [] that EPA would not
regulate new power plants under Section 112.
After settling a suit seeking enforceable deadlines for EPA
to regulate HAP emissions frompower plants, EPA
promulg ated the Mercury and Air Toxics (MATS) Rule in
2012 (77 Fed. Reg. 9304, Feb. 16, 2012). The MATS Rule
reaffirmed the 2000 A&N Finding and, based on additional
analysis and information, determinedthat setting HAP
emissions standards formost existing coal- and oil-fired
power plants under Section 112was appropriate and
necessary.As part of the rule, EPA concluded that it was
not appropriate to consider costs when making an A&N
finding.
The D.C. Circuit upheld the MATS Rule in 2014 (White
StallionEnergy Ctr. v. EPA,748 F.3d 1222 (D.C. Cir.
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