States ask Supreme Court to block EPA air pollution rule

Twenty conservative states want the Supreme Court to block the Obama administration from enforcing an air pollution rule for power plants.

Emboldened by the high court’s decision earlier this month to block another contentious Environmental Protection Agency (EPA) regulation, the states, led by Michigan, asked the Supreme Court Tuesday to stop the rule on mercury and other toxic pollutants after the U.S. Court of Appeals for the District of Columbia Circuit refused.

{mosads}The Supreme Court ruled last year that the Obama administration should have completed a cost-benefit analysis before it even started the regulatory process for the mercury and air toxics (MATS) standards.

But that decision did not overturn the rule, and the circuit court said in December that the EPA can continue to enforce it despite the loss at the Supreme Court.

The rule is one of the most controversial and expensive regulations created during President Obama’s tenure and has caused coal-fired power plants to shut down. While the Supreme Court decision was a major loss for the administration, the rule’s enforcement had already begun, and the lower court gave the administration a huge win by letting it continue enforcement.

“Unless this court stays or enjoins further operation of the Mercury and Air Toxics rule, this court’s recent decision in Michigan v. EPA will be thwarted,” the states wrote in their Tuesday filing.

“A stay or injunction is appropriate because this court has already held that the finding on which the rule rests in unlawful and beyond EPA’s statutory authority.”

They called the EPA’s actions “an unmistakable example of agency overreach: an executive agency strayed far beyond the limited authority the legislative branch gave it, and then, which this court corrected the agency’s error, EPA requested on remand that the unauthorized, unlawful regulation should be left in place to have the force of law.”

The EPA is working to fix the regulation by retroactively writing a cost-benefit analysis. It already completed such an analysis as a later step in the regulatory process, and it’s planning to apply that now.

Administration lawyers said the fix will be done by April 16.

Earthjustice, a law firm that serves environmentalists, slammed the states’ motion Tuesday.

“The states’ move is premature and wrongheaded,” James Pew, an attorney with the group, said in a statement.

“The Supreme Court chose not to stop the rule but, instead, to require EPA to explain it. The agency should be given a chance to comply with the Supreme Court’s order.”