D.C. Circuit Grants Oral Argument Postponement in Litigation over Mercury and Air Toxics Standards

(Washington, D.C. – April 27, 2017) The U.S. Court of Appeals for the District of Columbia Circuit today granted a Trump Administration request to delay litigation over lifesaving Mercury and Air Toxics Standards, which set the first-ever national limits on some of the most hazardous air pollutants emitted by coal- and oil-fired power plants.  

The court’s decision does not weaken or overturn the Mercury and Air Toxics Standards, which are already in full force and effect and are protecting the lives and health of Americans across the country. Virtually every power plant in America is already in compliance with the Mercury and Air Toxics Standards, at a fraction of cost originally projected.

The court’s decision does postpone oral arguments on legal challenges to a final supplemental finding for the Mercury and Air Toxics Standards, which were due to take place in three weeks. 

“The Mercury and Air Toxics Standards are already in place, saving thousands of lives every year, and helping protect our families and communities from toxic pollution,” said EDF Senior Attorney Graham McCahan. “The Mercury and Air Toxics Standards have a rock-solid foundation in the law and science, and there is no basis to weaken them. We fully expect these critical health protections will continue to remain in place.”

The Mercury and Air Toxics Standards reduce hazardous air pollutants – including mercury, arsenic, chromium, and hydrochloric acid gas – from power plants. These pollutants are hazardous to human health even in small doses – for instance, mercury causes brain damage in developing children; metal toxics like chromium and nickel cause cancer; and acid gases cause serious lung diseases. 

In June 2015, the Supreme Court ruled that the U.S. Environmental Protection Agency (EPA) should have considered the costs of the Mercury and Air Toxics Standards in its initial, or threshold, decision to address these hazardous pollutants. (EPA had determined that the public health benefits of the Mercury and Air Toxics Standards were up to $90 billion annually, and far exceeded compliance costs, and EPA considered costs in establishing the pollution limits.) The Supreme Court did not overturn the Mercury and Air Toxics Standards, but it did remand the case to the U.S. Court of Appeals for the D.C. Circuit for further consideration.

In April, 2016, EPA issued a final supplemental finding, in compliance with the Supreme Court’s directive, about the costs and benefits of the Mercury and Air Toxics Standards. The supplemental finding confirmed that the cost of compliance for the standards is eminently reasonable when considered in light of the serious public health and environmental hazards of toxic emissions from power plants. 

Opponents then sued over the supplemental finding. That case has been fully briefed, and oral argument was scheduled for May 18^th.

On April 18^th, the Trump Administration asked the court to delay litigation while EPA reviews the supplemental finding. It was the latest in a long series of steps the Administration has taken to revisit a range of important public heath protections, including asking the D.C. Circuit to stop working on litigation around the Clean Power Plan, the carbon pollution standards for new, modified and reconstructed power plants, and the ground-level ozone (or smog) standards. 

Today the court agreed to postpone oral argument in the Mercury and Air Toxics Standards litigation, and to hold the case in abeyance pending further order. The court directed EPA to file reports on its review every 90 days

EDF has been advocating for these life-saving standards for years. We joined with allies – including 21 states and local governments, major medical and public health organizations, and some major power companies – to defend the Mercury and Air Toxics Standards in court, and will continue to defend them – we are a party to the current case. 

You can find more about the Mercury and Air Toxics Standards, including all legal briefs, on EDF’s website.