DOJ: High Court Shouldn't Revisit Power Plant Mercury Rule

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By Patrick Ambrosio

May 9 — The U.S. Supreme Court should deny a request by 20 states to review a lower court's decision to leave the Mercury and Air Toxics Standards in place because the states lack standing and because a recent Environmental Protection Agency finding has mooted the issue, according to the federal government.

The U.S. Justice Department, in a May 6 brief filed on behalf of the EPA, argued that the state coalition is unable to show an injury that resulted from a 2015 decision by U.S. Court of Appeals for the District of Columbia Circuit that left the MATS rule in place while the EPA worked to address a legal flaw. The MATS rule, which set limits on power plant emissions of mercury and other hazardous air pollutants, directly imposes obligations on the power sector, not on states, the government argued.

The state coalition, led by Michigan, successfully challenged the Mercury and Air Toxics Standards before the Supreme Court in 2015, obtaining a ruling that held the EPA erred when it did not consider cost in its threshold decision on whether it was “appropriate and necessary” to regulate power plants under Section 112 of the Clean Air Act (Michigan v. EPA, 135 S. Ct. 2699, 2015 BL 207163, 80 ERC 1577 (2015); White Stallion Energy Ctr. LLC v. EPA, D.C. Cir., No. 12-1100, 12/15/15; 241 DEN A-9, 12/16/15).

However, the Supreme Court's decision left the fate of the MATS rule up to the D.C. Circuit, which decided to leave the standards in place while the EPA conducted the required cost consideration.

The states now want the Supreme Court to consider whether a reviewing court can leave an unlawful rule in place if a regulatory agency promulgated that regulation without having the statutory authority to do so. If the Supreme Court were to grant the states' petition, the court would review the D.C. Circuit's more than 20-year-old test for deciding whether to vacate an agency regulation or action on remand, which involves an analysis of the seriousness of the legal flaw in question and the disruptive consequences of vacating a decision only to have it later be reissued.

DOJ Argues Issue Is Moot

The Justice Department argued in its brief that even if the D.C. Circuit's decision to remand the MATS rule back to the EPA without vacating the regulation had caused the states a “cognizable injury,” the court's order no longer has any effect and the issue is moot.

The federal government said the issue is mooted as result of the EPA's issuance of a supplemental finding that reaffirmed that it is “appropriate and necessary” to regulate power plants after considering cost. Attorneys told Bloomberg BNA after the EPA issued its new determination that the federal government would likely argue that the states' petition for certiorari with the Supreme Court is now moot (82 DEN A-4, 4/28/16).

“That determination—not the D.C. Circuit's decisions to remand the rule without vacatur—provides the legal authority under which the rule is now in effect,” the Justice Department said. “Thus, even if this court granted certiorari and held that the D.C. Circuit's remand order was unlawful, its decision would have no effect on the rule's ongoing validity, and petitioners would not be entitled to any retrospective relief for the harms the rule allegedly caused them during the pendency of the supplemental ruling.”

The state coalition anticipated that the EPA would issue a supplemental appropriate and necessary finding in their petition, which argued that a challenge to the D.C. Circuit's decision would fall under an exception to the mootness doctrine known as “capable-of-reptition-yet-evading-review.” That exception allows for challenges that would otherwise be moot to be considered if the duration of the challenged action is too short to be fully litigated and there is a reasonable expectation that the parties would be subjected to the same action again.

The federal government argued in its brief that the state petitioners failed to meet the requirements for that exception because it is “purely speculative” that the states would be subjected in the future to a similar remand-without-vacatur order in another challenge to an EPA regulation. In addition, the Justice Department said there is also no reason to believe that any such future order would be in effect for such a short period of time.

Appeals Panel Decision Called Reasonable

The Justice Department also disputed a pair of claims raised by the states: that the D.C. Circuit's decision conflicted with the Supreme Court's 2015 Michigan v. EPA ruling and that the D.C. Circuit's decision created a circuit split that the Supreme Court should address.

The federal government said the D.C. Circuit's decision to remand the MATS rule back to the EPA without vacating the standards “reflected a reasonable exercise in remedial discretion” based on the significant public health benefits associated with leaving the rule in place, the lack of disruption to regulated power plants that would occur as a result of leaving the rule in place and the EPA's plan to quickly reevaluate its appropriate and necessary finding.

That decision by the D.C. Circuit does not contravene the Supreme Court's 2015 Michigan ruling, which did not require that the MATS rule be vacated, the Justice Department said. The federal government's brief noted that the states had asked the Supreme Court to vacate the MATS rule in that litigation, relief that the court decided to not grant.

The Justice Department also disputed that there is a circuit split on the issue of the D.C. Circuit's “remand with vacatur” of the MATS rule. The states did not cite a single decision in their brief that held vacatur of an agency decision is required in every case where an agency action is held to be unlawful, the federal government argued.

The state coalition's petition for certiorari also is opposed by a number of environmental and public health groups, including the American Lung Association, the Environmental Defense Fund and the Sierra Club, and several state and local governments that support the EPA's mercury standards. The state, local and public health organizations filed a May 6 brief that made many of the same arguments against the states' petition as were advanced by the Justice Department.

An industry group that includes Calpine Corp. and Exelon Corp., which intervened on behalf of the EPA in past litigation over the mercury rule, also filed a May 6 brief in opposition to the cert petition.

To contact the reporter on this story: Patrick Ambrosio in Washington at

To contact the editor responsible for this story: Larry Pearl at

For More Information

The federal government's response brief in Michigan v. EPA is available at

The state, local government and environmental and public health organizations' opposition brief in Michigan v. EPA is available at

The industry opposition brief in Michigan v. EPA is available at