Supreme Court tests EPA’s limits on mercury air pollution

The Supreme Court heard arguments over federal pollution mandates. The EPA says its limits on toxic contaminants like mercury in power plant emissions are vital to human health, but energy producers are arguing the EPA didn’t take costs into consideration when the limits were created. Gwen Ifill gets debate from Vickie Patton of the Environmental Defense Fund and David Rivkin of BakerHostetler.

Read the Full Transcript

  • GWEN IFILL:

    Now we turn to today's arguments in a case that pits energy producers against the Environmental Protection Agency, in question, whether EPA-mandated limits on toxic emissions go too far and cost companies too much.

    Here to make the arguments at the court — heard at the court today, are Vickie Patton of the Environmental Defense Fund, which favors the regulation, and David Rivkin, an attorney who represents some of the companies opposed.

    Is this about the dangers of mercury emissions, or is it about who pays for them, or is it about defining what the cost is?

    Let's start with you, David Rivkin.

  • DAVID RIVKIN, BakerHostetler:

    It's not about the dangers at all.

    It's about EPA, unfortunately — this is the third time a major environmental case is taken on by the high court recently, which is quite unusual. It's about EPA rewriting the statute, reading out of existence what is appropriate. They clearly required it to reasonably construe the cost, putting out a rule that costs over $9 billion a year, but has the benefits of between 500 to six million, which is a ratio of 20,000 to one, and then the — which is utterly inappropriate, and then the last minute coming with a Hail Mary argument, using the reason that was not articulated by the agency in the record, namely that because they have an opportunity to consider costs under a different section of a statute, somehow that vitiates the obligation to consider the cost at the front end of subjecting the entire utility and the state of this regulation.

    Absolutely disrespectful of the rule of law, disrespectful of judiciary in part, because judiciary is supposed to review the record. Judiciary is supposed to review what the agency did, not grapple with new arguments in oral argument.

    And it is utterly, utterly regrettable. It has nothing to do with environmental — one final point. The reason there's a special section to deal with the electric utility industry is because electric utility industry is already heavily regulated.

  • GWEN IFILL:

    I'm going to let you get to all this, but I really have to let Vickie Patton start to reply.

  • VICKIE PATTON, Environmental Defense Fund:

    The clean air protections heard before the court today are the single most important clean air safeguards we can put in place as a nation for our communities and for our families.

    The coal plants that are the subject of these vital emissions standards are the single largest source in our country of mercury, arsenic, acid gases. Those are very toxic contaminants. Let's take mercury. There are fish consumption advisories across America, red states and blue states alike, for mercury.

    There are hundreds of thousands of children who are born each year with mercury levels that imperil their brain development. Every other major source in our country of mercury, cement plants, incinerators, industrial boilers, have taken important measures to lower their mercury emissions.

    The question before the court is, will these — the single largest source in our country finally do its fair share in protecting our communities and families from the most toxic emissions in our environment?

  • GWEN IFILL:

    But is the question before the court about whether the industry will do its fair share or what the fair share is?

  • DAVID RIVKIN:

    The question before the industry is whether or not it was reasonable for EPA to fail to consider cost in putting the utility industry in this regulatory basket, despite clear statutory obligations.

  • GWEN IFILL:

    How do you define costs? Because the industry would obviously say there is a different kind of cost.

  • DAVID RIVKIN:

    Forgive me.

    There is actually no disagreement as to what the costs were here. The agency refused to consider costs. In fact, the agency originally claimed they could not consider costs. An oral argument, General Verrilli claimed that the agency could consider costs, but shouldn't have.

    Very briefly, a point Vickie made, mercury is a dangerous pollutant, but the benefits attributable to mercury regulation of those power plants are so tiny because of the small amount of mercury in — which is why I mentioned 500 to six million vs. nine — and six billion.

    What the agency has done, I call it regulatory three-card Monte. They came up with other benefits that have nothing to do, Gwen, with mercury. They came up with benefits that have to do with particulates, which EPA should regulate…

  • GWEN IFILL:

    When you say benefit, you're talking about health benefits.

  • DAVID RIVKIN:

    Health benefits.

    So, they have done the three-card Monte there. They took the benefits attributable to a totally different pollutant. They should regulate under its own section of the Clean Air Act.

  • GWEN IFILL:

    Let me ask Vickie Patton, are they mixing up apples and oranges here?

  • VICKIE PATTON:

    No.

    The time-tested history of our nation's clean air laws is that we can protect our children from harmful air pollution and we can grow our economy. Here, the Environmental Protection Agency thoroughly considered costs.

    The question, the narrow legal question before the court was, how does the agency make its threshold inquiry in deciding to proceed with protective emission standards? Those protective emission standards were designed with costs and technology thoroughly sort of taken into account in every respect.

    But the threshold question, which is one that the agency faces all of the time throughout the nation's clean air laws in deciding whether to put in place emission standards, is — and this is the language that Congress used — Congress used this language — it said, Environmental Protection Agency, determine whether there are hazards to human health, hazards to human health.

    And the Environmental Protection Agency looked at that language and it said, OK, Congress, you have told us to determine whether there are hazards to human health. We believe our job is to assess the health hazards. And then, when we set the emission standards based on the hazards to human health, we will take into account costs and technology.

  • GWEN IFILL:

    I want to take this inside the courtroom today, because you were there. And I'm curious about whether you heard your argument well-made today.

  • DAVID RIVKIN:

    I heard it well-made, but I cannot help myself. The statute language says administrative EPA shall regulate electric utilities, steam-generating units…

  • GWEN IFILL:

    You're not being very helpful to our audience by reading this right now.

  • DAVID RIVKIN:

    Well, forgive me.

    The EPA should regulate it if EPA finds it appropriate and necessary. The word "appropriate" conveys that you look at more than — than environmental risk. You have to look at cost.

  • GWEN IFILL:

    That's my point. That was part of the argument that was happening at the court today.

  • DAVID RIVKIN:

    That's the argument. There's nothing else.

  • GWEN IFILL:

    And was that addressed? And how did the justices respond?

  • VICKIE PATTON:

    One of the most interesting things that happened at the court today is that there were a set of power companies that were before the highest court in our land.

    These are power companies that provide power to over 60 million Americans. And what they said is that we find that EPA standards are economically reasonable, on the record before the high court. And they said, we're rolling up our sleeves and we're delivering cleaner, healthier air at a fraction of the costs that were predicted, and really demonstrating that we can in America have both clean air and a strong economy.

  • GWEN IFILL:

    You got the first word.

    You're going to get the last word.

    And the Supreme Court ultimately will get the really last word.

    Vickie Patton and David Rivkin, thank you both very much.

  • DAVID RIVKIN:

    Thank you.

  • VICKIE PATTON:

    Thank you.

Listen to this Segment