Clean air gets scrubbed

How can Supreme Court ignore the cost of mercury and other hazardous air pollutants?

What is the value of being able to eat fish? What price should be put on birth defects that show up in a human fetus? What about the cost of people dying much earlier than they should have if not for an encounter with a toxic chemical?

To paraphrase Oscar Wilde, we live in an age where it's possible to know the price of everything but the value of nothing. Perhaps that's something a majority of the Supreme Court might have mulled over — maybe while eating lunch that likely did not include king mackerel or other seafood that now carries a health warning — in their decision to block U.S. Environmental Protection Agency regulations limiting the harmful emissions from coal-fired power plants.

By a 5-4 vote, the justices decided that the agency failed to conduct an adequate cost-benefit analysis when it first decided to regulate mercury and other pollutants. That's not to say the EPA didn't eventually do just that — and do it multiple times and in multiple ways over the years. What the majority of the court objected to was a failure to look deeply enough at costs at the earliest stages of the regulatory process more than a decade ago — a classic dotting of the i's and crossing of the t's problem.

The irony, of course, is that in holding up the rules which were expected to be finalized this summer, it's the Supreme Court that has cost the American people. Power plants are by far the major source of airborne mercury (along with a lot of other bad stuff like sulfur dioxide and arsenic). It eventually falls to the ground, gets swept into waterways and enters the food chain where it can be consumed by human beings.

There are other sources, of course. But the other main ones challenged by the EPA — municipal waste combustors and medical waste incinerators — reduced their mercury emissions by more than 96 percent between 1990 and 2005, according to an EPA report. How have power plants done over that same period? About 10 percent.

The consequences of this should be troubling to all, including the justices who ruled against the EPA — Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito and Chief Justice John Roberts. Mercury is such a major contributor to birth defects that pregnant women and even women who are trying to become pregnant are warned about eating seafood since nearly all fish and shellfish contain traces of methyl mercury. The EPA has estimated that the new rules would prevent 11,000 premature deaths per year and that total health and related benefits could reach $90 billion annually.

That's a big number. But we also recognize there is a cost to compliance. Equipment known as "scrubbers" would have to be installed on smokestacks to remove mercury and the other pollutants. The price tag to comply? About $9.6 billion a year, according to the agency's best estimate, or about $30 per U.S. citizen, although it's likely that utility customers in the Midwest and South where older coal-fired power plants are a chief source of electricity would have been affected most.

So let's see. The benefits are in the neighborhood of 10-to-1 greater than the costs. That would seem to make a pretty good case, but not to someone like Justice Scalia who somehow adds the testimony up and found the costs "vastly exceed whatever public benefit can be achieved." This is apparently because the EPA considered all the toxic chemicals scrubbers aimed at lowering mercury levels would remove from plant emissions and how that cleaner air would benefit the public. It's noteworthy, too, that there was nothing in the Clean Air Act or its more recent amendments that specifically required the EPA to consider costs to polluters in that way.

Still, the court's decision doesn't prevent the EPA from going back to the rules again and performing the kind of analysis that the court seems to want. But since these rules were issued in 2012, it's a safe bet they won't be finalized again until President Barack Obama leaves office which, after all, is what the litigation was all about — delay, delay, delay until a president with less interest in protecting the health of all Americans, including those of us who downwind of Midwest power plant emissions, takes office.

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