Amicus Curiae Brief — Michigan v. Envtl. Prot. Agency, 135 S. Ct. 702 (2014) (No. 14-46)

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Supreme Court, U.S.

FILED

JAN 27 2015

OFFICE OF THE CLERK

Nos. 14-46, 14-47, and 14-49

IN THE

Supreme Court of the United States

STATE OF MICHIGAN, ET AL.

Petitioners,

Vv.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR THE CATO INSTITUTE

AS AMICUS CURIAE IN SUPPORT OF

PETITIONERS

DAVID B. RIVKIN, JR.

ILYA SHAPIRO Counsel of Record

CATO INSTITUTE MARK W. DELAQUIL

1000 Mass. Ave., N.W. ANDREW M. GROSSMAN

Washington, D.C. 20001 BAKER & HOSTETLER LLP

(202) 842-0200 1050 Connecticut Ave., N.W.

ishapiro@cato.org Washington, D.C. 20036

(202) 861-1731

drivkin@bakerlaw.com

Counsel for the Amicus Curiae

QUESTION PRESENTED

Whether the Environmental Protection Agency

unreasonably refused to consider costs in determin-

ing whether it is “appropriate” to regulate hazardous

air pollutants emitted by electric utilities.

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE.................. 1

INTRODUCTION AND SUMMARY OF

"AE PSPRINE Cs Ea Seen ee oor eRe 2

ITT sini senichucdasstslenashdaleicivensiaindlvensuaisanncdsiniedibieaaaen’ 4

I. The Mercury-Related Benefits of

Regulating Power Plants Are De Minimis

and Could Not Possibly Justify a

Reasonable “Appropriate and Necessary”

I ciandiahancsshieentite chi cieiedcie ecesabbiiaptigedeiibibaininsuebancenins 4

A. U.S. Power Plants’ Mercury

Emissions Contribute Only a Tiny

Fraction to Global Deposition.................... 5

B. EPA Was Forced To Adopt Arbitrary

and Implausible Assumptions To Find

Any Health Justification for

NI sic iasiccessdesacescciiabtilivicibscssiabelnninianessitiiaeniinsriie 9

1. Mercury Deposition ...........................-. 9

2. Hypothetical Populations.................. 10

3. Exposure Modeling............................ 14

ee) 16

5. Attribution to U.S. Power Plants...... 17

C. Even Under EPA’s Assumptions, the

Rule’s Mercury-Related Benefits Are

De Minimis and Overwhelmed by Its

eae rie a 2 Te thor dc ee LEE, RE

Il. EPA’s Actual Target Was Power Plants’

Particulate-Matter Emissions.......................

A. Particulate Matter Co-Benefits Have

Provided the Primary or Only

Economic Justification for EPA’s

Meent ARF TONS cocecctssssviecomnnae

B. The MATS Rule Directly Regulates

Particulate-Matter Emissions.................

Ill. EPA’s Decision Not To Consider Cost

Allowed It To Aggrandize Its Power at

the Expense of States and Their Citizens ....

COIN eS ccccsceecsusesssestsnsssdiacannennesnialenenle

TABLE OF AUTHORITIES

Page

Cases

Hall v. Florida, 134 S. Ct. 1986 (2014)..........000..... 20

National Lime Association v. EPA,

233 F.34 625 (D.C. Cir. 2000).............................. 32

Union Electric Co. v. EPA, 427 U.S. 246 (1976).... 31

Utility Air Regulatory Group v. EPA,

I ET SI ns cncscnccacessbecsocecccccovecseccess 31

Whitman v. American Trucking Associations,

i ccnanesoauvocnstoues 30

Statutory Provisions

a sesouvonmnnsonnene 33

i ncesnevaecerencs 29-30

| ES SSE Aa 30, 32

EE SO 29-31

ESE passim

Other Authorities

36 Fed. Reg. 8,186 (Apr. 30, 1971)......................... 24

65 Fed. Reg. 79,825 (Dec. 20, 2000) ....................... 17

75 Fed. Reg. 9,648 (Mar. 3, 2010) .......................... 27

75 Fed. Reg. 35,520 (June 22, 2010)...................... 27

76 Fed. Reg. 24,976 (May 3, 2011)................. passim

77 Fed. Reg. 9,304 (Feb. 16, 2012)................. passim

78 Fed. Reg. 3,086 (Jan. 15, 2013) ................... 30, 33

79 Fed. Reg. 34,830 (June 18, 2010)...................... 27

The American Energy Initiative: A Focus on

What EPA’s Utility MACT Rule Will Cost

U.S. Customers: Hearing Before the Sub-

comm. on Energy & Power, H. Comm. on En-

era GB Comment en GET un ncccccccccntsnscccsapsessinnescseces 25

American Psychiatric Association, Diagnostic

& Statistical Manual of Mental Disorders

CE TR peteccdtntecnenncoerncstcncnictbnainingetis 20

EPA Administrator Gina McCarthy, Remarks

on Carbon Pollution Standards for New

aay Tne ccuenpnesewannibenienencpiidnsmnaniapesindi 23

EPA, Co-Benefits Risk Assessment (COBRA)

Screening Model (Sept. 2014) ...............2.cc0eceeeees 24

EPA Fact Sheet: Mercury and Air Toxics

SEER DEC AL ELEN LCRA RET NOE 26

EPA, Mercury and Air Toxics Standards—

ee ee ccutseaddndantnumainepiumothonmias 26

EPA, Particulate Matter Research ........................ 23

Final Regulatory Impact Analysis (“RIA”),

| yk PES 5-9, 19, 21, 24-25, 27-28

C.J. Lin, et al., Estimating mercury emission

outflow from East Asia using CMAQ-Hg, 10

Atmos. Chem. Phys. 1853 (2010)........................4. 6

Erica Martinson, Uttered in 2008, still haunt-

ing Obama in 2012, Politico Pro

I a a ad 23

Presidential Memorandum: Power Sector Car-

bon Yollution Standards (June 25, 2013) .......... 23

Proposed Mercury Risk TSD, MATS Rule............. 10

Remarks by the President on Climate Change

Ea RAN MIRE ENS See ERE CES AS AI 23

Revised Mercury Risk TSD,

I 7—8, 10—13, 17-19

RIA, Existing Stationary Spark Engine Haz-

ardous Air Pollutant Rule (Jan. 2013) ............... 27

RIA, Final Ozone NAAQS (July 2011)................... 28

RIA, Industrial, Commercial, and Institutional

Boilers and Process Heaters Hazardous Air

I BI COIN BIE BD ccecerrtesctneceniticensncecdtincens 28

RIA, New Source Performance Standards and

Existing Source Emission Guidelines for

Sewage Sludge Incineration Units

SN I cistisatnssdnchachavnddiinabanielncanhngmnunoed oe eR 28

Rep. Jim Sensenbrenner, President Obama's

ee Oe Se Se Oe Be icseccctecencitisitwesctininiccenss 22

The White House, Climate Change and Presi-

dent Obama’s Action Plan.......................cce0020e00 23

og ee 27

INTEREST OF THE AMICUS CURIAE'

The Cato Institute is a nonpartisan public policy

research foundation dedicated to advancing the prin-

ciples of individual liberty, free markets, and limited

government. Cato’s Center for Constitutional Stud-

ies was established in 1989 to help restore the prin-

ciples of limited constitutional government that are

the foundation of liberty. Toward those ends, Cato

publishes books and studies, conducts conferences,

files briefs in the courts, and produces the Cato Su-

preme Court Review.

Cato’s Center for Study of Science was found-

ed in 2011 to ensure that environmental and health

regulations are supported by sound scientific re-

search. Its director, Patrick H. Michaels, Ph.D.,

served as a professor of Environmental Sciences at

the University of Virginia for 30 years, as president

of the American Association of State Climatologists,

and as program chair for the Committee on Applied

Climatology of the American Meteorological Society.

This case implicates Cato’s longstanding belief

that the courts must exercise appropriate oversight

of administrative agencies to ensure that they re-

main within their statutory remits.

‘Pursuant to Rule 37.6, counsel for the amicus curiae certifies

that no counsel for any party authored this brief in whole or in

part and that no person or entity other than the amicus curiae

or its counsel made a monetary contribution intended to fund

the briefs preparation or submission. Letters from the parties

consenting to the filing of this brief are filed with the clerk.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Yes, it was obviously unreasonable for the Envi-

ronmental Protection Agency to ignore the massive

cost of regulating power plants when determining

whether such regulation would be “appropriate.”

Amicus therefore joins the petitioners’ arguments on

that score. This brief addresses a closely related

question that is essential to the Court’s understand-

ing of the underlying statutory dispute: why did EPA

choose to ignore costs?

The answer is that EPA could achieve its

longstanding goal of comprehensively regulating

utility-sector emissions free from the limitations of

other Clean Air Act programs only if it ignored the

costs of its actions. Of course, EPA never comes right

out and says that, but the agency has been surpris-

ingly candid about the tenuous nature of the finding

of risk to human health underlying its “appropriate

and necessary” finding, which triggered regulation,

and about its overriding focus on other power-plant

emissions that are not (directly) subject to regulation

under Section 112.

In short, EPA used U.S. power plants’ mercury

emissions—which, by the agency’s own scientific as-

sessment, have basically no impact on human

health—es a Trojan horse for regulation of those

plants’ particulate-matter emissions, so as to escape

the limitations of regulating those emissions through

generally applicable National Ambient Air Quality

Standards (“NAAQS”), as the agency has done for

decades.

This brief proceeds in three sections. The first re-

views EPA's scientific assessment of the nature and

risk to human health of mercury emissions from U.S.

power plants. As the agency recognized, those emis-

sions constitute only a miniscule proportion—about

half of one percent—of global emissions and pose no

measured risk to human health themselves. Accord-

ingly, regulating them promises little or no benefit.

Instead of accepting that conclusion and proceeding

accordingly by declining to regulate, the agency em-

ployed a series of implausible assumptions and hy-

pothetical scenarios to contrive a slight risk to the

health of the children of “women in subsistence fish-

ing populations” who consume enormous quantities

of freshwater fish that they themselves caught. Even

under EPA’s questionable assumptions, the benefits

of regulation are de minimis—as little as $500,000—

and overwhelmed by costs that the agency projects to

reach nearly $10 billion.

The second section describes how EPA used Sec-

tion 112 regulation—triggered by mercury emis-

sions—to target power plants’ emissions of particu-

late matter, which (not being a “hazardous air pollu-

tant”) is not subject to Section 112. Nearly all of the

rule’s projected benefits are ascribed by the agency

to reductions in particulate-matter emissions, which

the rule regulates directly as a “surrogate” for sub-

stances that actually are subject to Section 112. This

is consistent with EPA’s many recent rulemakings

targeting the utility sector, virtually all of which

have used particulate-matter emissions as a basis

for imposing costly control requirements on a class of

facilities that the agency seeks to phase out.

The final section explains why EPA would take

such a convoluted approach. Regulating particulate-

matter emissions through NAAQS requires EPA to

cede control of the decisions of which industrial

sources should be required to control emissions-——and

if so, how—to the states. The states are, in turn, free

to permit emissions that are consistent with their

and their citizens’ policy preferences, whether or not

they align with EPA’s priorities. By proceeding un-

der Section 112, EPA is able to circumvent these

statutory limitations on its authority and directly

achieve its intended goal: imposing new require-

ments on coal-fired power plants.

The Court should reject this sleight of hand and

enforce the Clean Air Act’s limits on EPA’s authority

and discretion. The Mercury and Air Toxics Stand-

ards (“MATS”) rule should be vacated.

ARGUMENT

I. The Mercury-Related Benefits of Regulating

Power Plants Are De Minimis and Could Not

Possibly Justify a Reasonable “Appropriate

and Necessary” Finding

EPA found that the potential health risk of U.S.

power plants’ mercury emissions justifies their regu-

lation under Section 112 of the Clean Air Act. But

EPA’s own scientific analysis shows that mercury,

once emitted, circulates globally and that domestic

power plants’ contribution to the global pool of mer-

cury in the atmosphere is miniscule—about one half

of one percent and falling. Rather than accept its

own conclusion that even eliminating those emis-

sions entirely would have little or no impact on hu-

man health, EPA contrived hypothetical scenarios,

based on loaded assumptions, to find some health

risk that could justify regulation. Yet, even accepting

the agency’s implausible assumptions and scenarios,

its projection of the benefits of regulation is still de

minimis and dwarfed by projected costs.

A. U.S. Power Plants’ Mercury Emissions

Contribute Only a Tiny Fraction to

Global Deposition

Unlike nearly all other pollutants regulated under

the Clean Air Act, mercury emissions have little }o-

calized impact. Instead, as with greenhouse gases,

mercury pollution is a global phenomenon. Mercury

“cycles in the environment as a result of [both] natu-

ral and human (anthropogenic) activities.” Power

plants emit mercury primarily in its gaseous ele-

mental form. Proposed Rule, 76 Fed. Reg. 24,976,

24,499—25,000, 25,003/1 (May 3, 2011); Final Regu-

latory Impact Analysis (“RIA”) at 2-9. This elemental

mercury “does not quickly deposit or chemically re-

act in the atmosphere, resulting in residence times

that are long enough to contribute to global scale

deposition.” RIA at 4-3. It “circulates in the atmos-

phere for up to a year, and, hence, can be widely dis-

persed and transported thousands of miles from like-

ly sources of emission.” 76 Fed. Reg. at 24,983/1. In-

deed, EPA acknowledges that Asia, being “immedi-

ately upwind of North America...[,] affects U-S.

[mercury] deposition significantly and also affects it

the most compared to other regions.” Final Rule, 77

Fed. Reg. 9,304, 9,338/2 (Feb. 16, 2012).?

After circulating in the atmosphere for months or

years, mercury eventually precipitates and is depos-

ited onto the Earth’s land and water surfaces. 76

Fed. Reg. at 25,000/1; RIA at 4-3. This process is

known as “wet deposition,” and it occurs largely with

rain and snowfall. Microbial action then converts

deposited mercury into methylmercury. Jd. This sub-

stance, in turn, can be “taken up by aquatic organ-

isms,” and it accumulates in greater concentrations

as organisms higher up the food chain consume

those lower down. (In scientific lingo, it “biaoaccu-

mulates up the aquatic food web.”) Jd. “[T]he pre-

dominant exposure pathway by which humans are

affected by [methylmercury]...is by ingestion of fish

containing” it. 76 Fed. Reg. at 24,999/3. As discussed

further below, it is by modeling this “predominant

exposure pathway’—as it affects certain hypothet-

ical populations of subsistence fishers—that EPA

both justifies Section 112 regulation for U.S. power

2 Up to 36 percent of total mercury deposition in North America

is due to emissions from East Asia. C.J. Lin, et al., Estimatiag

mercury emission outflow from East Asia using CMAQ-Hg, 19

Atmos. Chem. Phys. 1853, 1854, 1861 (2010).

plants and projects all the quantified mercury-

related benefits of its rule.

But anthropogenic mercury emissions from all

U.S. sources (including power plants) comprise only

a tiny fraction of the global pool of atmospheric mer-

cury that is deposited in the United States. EPA es-

timates that U.S. anthropogenic mercury emissions

“contribute[] 5 percent to global anthropogenic [mer-

cury] and 2 percent [of] the total global [mercury]

pool.” Jd. at 24,978/3. That amounts to 105 tons in

2005, out of global emissions of 2,100 tons. Id. at

24,978 n.2. And the U.S. share is rapidly shrinking,

having gone “from 10 percent in 1990 to 5 percent in

2005, due to reductions in U.S. emissions and in-

creases in emissions from other countries.” Id. at

25,002/1.

The portion of global anthropogenic mercury emis-

sions attributable specifically to U.S. power plants is

considerably smaller. EPA estimates that U.S. power

plants emitted 53 tons of mercury in 2005—about

half of total domestic emissions—and projected that

they would emit just 29 tons in 2016, without regu-

lation under Section 112.3 76 Fed. Reg. at 25,002/2—3

& Table 3. See also RIA at 2-7, Table 2-5. This

means that U.S. power plants accounted for just 2.5

percent of global anthropogenic emissions in 2005

3 And the projected reduction in emissions between 2005 and

2016 may be conservative. EPA acknowledges that it has previ-

ously “substantially” underestimated declines in U.S. power

plants’ mercury emissions. Revised Mercury Risk TSD at 8.

and should account for approximately half that, or

less, by 2016.4

But the portion of total global emissions (both nat-

ural and anthropogenic) attributable to U.S. power

plants is even smaller still. This is because a sub-

stantial portion of globai emissions are attributable

to natural sources, such as volcanoes. 76 Fed. Reg. at

25,003/1; RIA at 4-22. EPA cites “estimates of total

global [mercury] emissions...rang[ing] from 7,200 to

8,300” tons per year. 76 Fed. Reg. at 25,001—02.

Therefore, domestic power plants were responsible

for 0.6 to 0.7 percent of total emissions in 2005, with

that range falling to 0.3 to 0.4 percent by 2016.

EPA’s modeling of mercury deposition in U.S. wa-

tersheds confirms that the contribution from U.S.

power plants is slight. See Revised Mercury Risk

TSD at 64-65 & Table 2-2. The agency estimates

that the median “percent of total mercury deposition

attributable to U.S. [power plants]” in a given water-

shed was 1 percent in 2005 and will be the same in

2016—that is, roughly in proportion to the U.S.

share of global emissions. Id. at 65, Table 2-2.5

In sum, as EPA has acknowledged, “U.S. [mercury]

deposition is generally dominated by sources other

than U.S. [power plants].” Jd. at 65. Or, as the agen-

4 Less, if non-U.S. anthropogenic emissions continue their rise.

5 Moreover, the agency acknowledges that its risk analysis

oversampled watersheds with higher-than-average deposition

from U.S. power plants. See 77 Fed. Reg. at 9,356/1—2.

cy has also put it, “global sources of [mercury] depo-

sition account for a large percentage of total [mercu-

ry] deposition,” 77 Fed. Reg. at 9,343/2, and “U.S.

[power plants] contribute only a small fraction of to-

tal [mercury] deposition in the U.S..,” id. at 9,355/3.

Simply put, the emissions that EPA addressed in its

“appropriate and necessary” finding are, by the

agency's own estimation, little more than a drop in

the global bucket.

B. EPA Was Forced To Adopt Arbitrary and

Implausible Assumptions To Find Any

Health Justification for Regulation

Given U.S. power-plant emissions’ slight contribu-

tion to mercury deposition, common sense would

suggest that reducing or even eliminating them

could have little or no appreciable effect on public

health. And that is borne out by EPA’s analysis. To

demonstrate any health effect at all that might justi-

fy regulation, EPA was forced to rely on a series of

implausible assumptions and hypothetical scenarios.

1. Mercury Deposition

EPA projects that Section 112 regulation will re-

duce U.S. power-plant mercury emissions in 2015

from the base case of 29 tons per year to 6 tons per

year, a reduction of 23 tons. 76 Fed. Reg. at 25,073,

Table 21. See also RIA at 3-10, Table 3-4 (reduction

from 28.7 to 8.8 tons for all power plants and from

26.6 tons to 6.6 tons for power plants covered by

rule). In the context of the global emission figures

discussed above, this 23-ton reduction represents the

elimination of approximately 0.3 percent of total an-

nual global mercury emissions. Because U.S. deposi-

tion due to domestic emissions is roughly propor-

tional to U.S. sources’ share of global emissions, see

supra § I.A, this reduction in emissions could be ex-

pected to reduce domestic mercury deposition by

substantially less than a single percentage point.

Accordingly, regulation would have little benefit in

terms of reducing human exposure to mercury and

thereby reducing risks to human health. The agency

admits as much. It explains that, because a “rela-

tively small fraction of total mercury deposition [is]

contributed by U.S. [power plants] on average across

the modeled watersheds....even substantial reduc-

tions in U.S. [power-plant] deposition... [are] unlikely

to substantially affect total risk.” Proposed Mercury

Risk TSD at 53. See also 77 Fed. Reg. at 9,356/2.

2. Hypothetical Populations

For that reason, a straightforward estimate of the

health impact of regulation would have found no ma-

terial risk to be remedied. So, to justify regulation,

EPA modeled the mercury exposure of hypothetical

populations of women that the agency projects to

consume extreme quantities of the most contaminat-

ed fish from the most contaminated bodies of water

and then estimated the potential effect of this expo-

sure on their hypothetical children’s neurological de-

velopment in utero. The agency is quite clear that

this approach “is not a representative population-

weighted assessment of risk.” Revised Mercury Risk

TSD at 2. Instead, per the agency, “the primary ob-

jective is to determine whether individuals exposed

to [mercury] emitted from U.S. [power plants]

through high-end consumption of freshwater self-

caught fish have the potential to experience signifi-

cant risk.” Id. at 6. In other words, the agency's

threshold for regulation was not even plausibility,

but conceivability of risk.

And it labored mightily to meet even that mark.

The agency focused its attention on “women of child-

bearing age in subsistence fishing populations who

consume freshwater fish that they or their family

caught.” 76 Fed. Reg. at 25,007/2. But it actually did

not attempt to observe or verify the size, fish-

consumption rates, mercury-exposure level, health

effects, or even the very existence of these popula-

tions. Instead, EPA assumed the existence, charac-

8 See, e.g., Revised Mercury Risk TSD at viii (‘Because we do

not have data available on the distribution of subsistence fish-

ing populations in all watersheds in the U.S., we modeled a hy-

pothetical female subsistence consumer at those watersheds

where we have fish tissue data and where we believe subsist-

ence fishing activity has the potential to occur.”); id. at 9 (“Be-

cause it is not possible to enumerate these high-end fisher pop-

ulations, the risk estimates that are generated are not popula-

tion-weighted and instead are given a uniform weight for each

watershed-level risk estimate generated.”); :d. at 34 n.32

(“While we cannot enumerate the subsistence fishers directly,

we can use the demographic data to determine if the underly-

ing source population is present in the vicinity of a watershed

with fish tissue [mercury] data.”); id. at 34 n.33 (“[W]e believe

it reasonable to assume that the typical female subsistence fish

consumer scenario (and associated fishing activity) could poten-

teristics, and fishing activity of these populations,

and then, relying on further assumptions, modeled

the health risks they could face from consuming fish

containing methylmercury in 2016. See generally

Revised Mercury Risk TSD at 14, Fig. 1-2 (Flow Dia-

gram of Risk Analysis) (diagramming “major analyt-

ical steps and associated modeling elements’).

Here’s how it works: EPA first conceived “seven

female subsistence fish consumer scenarios.” Id. at

15. These “scenarios” were based on data from a few

surveys of fish-consumption patterns among particu-

lar demographic groups, in particular locales, that

are known for catching and consuming hugely dis-

proportionate quantities of fish. See id. at 15, 32 &

Table 1-5.7 It also created a general “typical female

subsistence fish consumer scenario” (based on one of

the surveys, so not in fact “typical” with respect to

the population at large), as well as six scenarios tai-

lored to specific racial and economic subgroups,

based on the localized surveys. Jd. at 32, 35. The

“typical” scenario was run for all U.S. watersheds

with fish-tissue mercury data, reflecting the agency's

“assumption that, given the generalized nature of

tially occur at some subset of the watersheds with fish tissue

[mercury] data.”) (emphases added).

7 The three studies examined white and black populations in

South Carolina; certain Hispanic and Asian-American popula-

tions in California; and certain tribal populations in the Great

Lakes region. Jd. at 32. The “typical” scenario used consump-

tion rates from the first of these studies. See id. at 35.

[that] scenario, it is reasonable to assume that it

could potentially occur at any watershed with fish

tissue [mercury] data.” 77 Fed. Reg. at 9,315/1. The

demographically differentiated scenarios were run

only for watersheds that intersected with at least

one U.S. Census tract containing at least 25 individ-

uals similar to those profiled in the scenario. See Re-

vised Mercury Risk TSD at 34. Thus, the agency

would assume that, if a Census tract in a watershed

area contained at least 25 Asian-Americans, that

population was a “high-end fisher population” catch-

ing and consuming unusually large quantities of

wild fish. Jd. at 9.

Having identified hypothetical “female subsistence

consumer” scenarios for each watershed, the agency

next “defined high-end (subsistence) self caught fish

consumption rates for those scenarios.” Id. at 35.

These “high-end rates” were defined by figures

drawn from the 90th or (where available) 99th per-

centile of consumption rate as reflected in the sur-

veys. Id. at x, 16. For the “typical” scenario those

figures range from 99 to 300 pounds of fish per year.

See id. at 81, Table 2-6. So for each hypothetical

“typical” or “high-end fisher population,” EPA as-

sumed the existence of women who consume the

maximum conceivable amount of self-caught fish.®

® In the Final Rule, EPA acknowledged that this assumption

represents the extreme end of potential consumption:

The EPA acknowledges that the focus of the [Mercu-

ry] Risk TSD is characterizing risk for the groups like-

In sum, rather than consider health impacts on

any actual person or population, EPA contrived hy-

pothetical women of child-bearing age consuming

enormous amounts of self-caught fish from water-

sheds around the nation.

3. Exposure Modeling

EPA’s next step was to show that at least some of

these hypothetical highest-of-the-highest self-caught

fish consumers actually faced a health risk. That

analysis proceeded in two stages: exposure modeling

(how much mercury are these hypothetical persons

consuming?) and risk modeling (could that amount

possibly affect human health”).

To conduct the exposure modeling, EPA first need-

ed to estimate the amount of mercury in fish from

different watersheds. After filtering out certain tis-

sue samples and watersheds for various reasons

(e.g., exposure to active gold mines, which are a sub-

stantial source of mercury), the agency was left with

ly to experience the greatest U.S. [power plant]-

attributable [mercury] risk, which are subsistence

fishing populations active at inland freshwater lakes

and rivers. Specifically, within that subsistence fish-

ing population, the EPA is interested in those indi-

viduals who are most at-risk, which includes those

who consume the most fish. For that reason, the EPA

considered a range of high-end fish consumption rates

including the 99th percentile representing the most

highly-exposed individuals.

77 Fed. Reg. at 9,348/3.

35,567 tissue samples from 3,141 watersheds, out of

about 88,000 watersheds total. Jd. at 24. For one-

quarter of these watersheds, the agency had only a

single fish-tissue sample. See id. at 28, Fig. 1-7.

Where there were multiple samples from a water-

shed, EPA used the 75th-percentile fish-tissue val-

ue—that is, containing significantly above-average

amounts of mercury—‘“as the main basis for expo-

sure and risk characterization.” Id. at 26.

Assuming a linear relationship between mercury

deposition and fish-tissue mercury concentration at

a given watershed, the agency projected what those

concentrations would be in 2016. Id. at 43-44. At

this point, the agency had projections of how much

methylmercury would be found in fish tissue at the

watersheds.

To complete the exposure phase of the analysis,

EPA needed to estimate the methylmercury expo-

sure for the “female subsistence consumer{s]...active

at each watershed.” See id. at 14, Fig. 1-2. This was

relatively straightforward: it had already estimated

consumption rates of its hypothetical 99th-percentile

fish consumers in its hypothetical “high-end fisher

populations,” as described above. But rather than

simply multiply—amount of fish times the projected

amount of mercury in a unit of fish—the agency also

® EPA acknowledged that its selection of watersheds was not

“representative” of mercury pollution and was “likely to be bi-

ased towards locations with higher [mercury] fish tissue con-

centrations.” Jd. at 19.

boosted its mercury estimates by a factor of 1.5,

which it called a “cooking adjustment factor.”!° Id. at

41. After making a few additional adjustments, the

agency arrived at “estimates of annual-average daily

[methylmercury] exposure per kg body weight.” Jd.

at 42.

4. Risk Modeling

Having estimated its hypothetical high-end fish

consumers’ exposure to methylmercury, EPA’s next

task was to determine whether that exposure was

associated with any potential health risk.

The first step was to identify the “reference dose”

for methylmercury. This is “the amount of a chemi-

cal which, when ingested daily over a lifetime, is an-

ticipated to be without adverse health effects to hu-

mans, including sensitive subpopulations.” 77 Fed.

Reg. at 9,307/3. After throwing out one study that

failed to show any health effect at low levels of expo-

sure (like those at issue here), the agency calculated

a reference dose of 0.1 microgram!! per kilogram of

body weight per day.!? See Revised Mercury Risk

10 EPA acknowledged that this factor could be as low as 1—that

is, no effect at all. See id. at 41, 100, Table 2-15, row (H); 77

Fed. Reg. at 9,347/2—3.

1! A microgram is one one-millionth of a gram, or one one-

thousandth of a milligram.

12 The reference dose is derived from “the three extant large

studies of childhood effects of in utero exposure,” from the

“Faroe Islands, New Zealand, and an integrative measure in-

cluding data from Seychelles.” 77 Fed. Reg. at 9,351/1. The

TSD at 52, Fig. 1-9; Appropriate and Necessary

Finding, 65 Fed. Reg. 79,825, 79,827 (Dec. 20, 2000).

The second step was to calculate a “hazard quo-

tient” for each of its hypothetical high-end female

fish consumers of childbearing age at watersheds

around the country. 76 Fed. Reg. at 25,006 n.92.

This is simply exposure divided by the reference

dose, such that a value above one (i.e., exposure is

greater than the reference dose) indicates a “poten-

tial public health hazard.” Revised Mercury Risk

TSD at 43.

Based on this methodology, EPA determined

(somewhat unsurprisingly) that “almost all” of the

watersheds that it considered were “at risk” because

at least one hypothetical high-end fish consumer at

each would consume enough self-caught fish to sur-

pass the reference dose and therefore face a hazard

quotient of greater than one. 76 Fed. Reg. at

25,015/3.

5. Attribution to U.S. Power Plants

Next, EPA estimated the proportion of these haz-

ard quotients attributable to projected U.S. power-

Seychelles study, however, “did not confirm any harm on chil-

dren due to [methylmercury] exposure.” Jd. at 9,350/2. But EPA

rejected reliance on that study because it failed to show “an

association between [methylmercury] exposure and adverse

effects.” Jd. at 9,351/2. In other words, the agency discarded the

study’s conclusions because it did not find the relationship that

EPA anticipated.

plant mercury emissions in 2016. See Revised Mer-

cury Risk TSD at 43-44. The agency here used the

same mercury-deposition modeling that it had used

to project 2016 fish-tissue mercury concentrations at

each watershed. Id. at 14, Fig. 1-2.

EPA could have used these figures to estimate the

percentage of watersheds “at risk” because of U.S.

power plants’ mercury emissions—that is, water-

sheds where emissions from U.S. power plants can

be identified as the marginal factor causing them to

present a potential risk to high-end fish consumers.

But that’s not what it did. Instead, it calculated

the number of watersheds where U.S. power plants

“contributed at least 5 percent of the total [mercury]

deposition and related [methylmercury] exposures at

a watershed, or contributed enough [mercury] depo-

sition resulting in potential [methylmercury] expo-

sures above the [reference dose], regardless of the

additional deposition from other sources of [mercury]

deposition.” 76 Fed. Reg. at 25,015—-16. See also 77

Fed. Reg. at 9,366/1. In other words, it included “at

risk” watersheds where deposition attributable to

U.S. power-plant emissions equaled or exceeded 5

percent of the estimated total, regardless of whether

that deposition was sufficient to cause the “at risk”

designation. !4

13 Or, put differently, regardless of whether eliminating entire-

ly deposition attributable to U.S. power plants would cause the

watershed to no longer be “at risk.” On that point, EPA con-

cedes that Section 112 regulation will do little to protect its hy-

Using this methodology, and assuming “99th per-

centile fish consumption” (that is, its absolutely most

implausible scenario), it arrived at this figure: 29

percent. Revised Mercury Risk TSD at 86 & Table 2-

10. And that figure, whatever it represents, was its

basis for EPA’s finding that “U.S. [power plants] are

causing a hazard to public health.” 76 Fed. Reg. at

25,016/1. See also 77 Fed. Reg. at 9,311 n.15. And

that, in turn, rendered it “appropriate” to regulate

those plants’ emissions. Jd. at 9,311/2—3.

C. Even Under EPA’s Assumptions, the

Rule’s Mercury-Related Benefits Are De

Minimis and Overwhelmed by Its Costs

Had EPA not ignored the costs of regulation in

making its “appropriate and necessary” determina-

tion, it might have compared them with the mercu-

ry-related benefits of regulation. Although the agen-

cy did not undertake this comparison, it did supply

the necessary elements.

The only mercury-related benefit of regulation that

EPA believed could be expressed in monetary terms

is a reduction in IQ points lost. See RIA 4-1 to 4-2. To

begin with, the agency estimated the number of chil-

dren who would be born to the hypothetical high-end

self-caught fish-consuming female populations dis-

cussed above and then modeled the mercury expo-

sure suffered in utero by those children. The agency

pothetical “at risk” populations. Revised Mercury Risk TSD at

xi, 111.

projected that some 240,000 children would be af-

fected and that, in its 2016 scenario, each would suf-

fer a mercury-induced loss of 0.10 IQ points, on av-

erage. Id. at 4-55, 4-67. Collectively, this would

amount to a loss of 24,419 IQ points, due to exposure

to fish-borne mercury from all sources. Id. at 4-54.

To be sure, almost none of that could be attributed

to U.S. power plants—due to their small contribution

to total deposition—so the agency calculated the

proportional number of IQ points that would be

“saved” per year through regulation: 510.8, across

the entire population of children of hypothetical

high-end fish consumers. See id. at ES-5, Table ES-3.

Each of those children would enjoy an average

“avoided IQ loss” of 0.00209 IQ points. Id. at 4-3.

Thus, EPA projects that the rule will prevent each

child from suffering about one-fiftieth of the estimat-

ed IQ loss (already de minimis) that it attributes to

all mercury exposure.

To put that in context, the mean [Q-test score is

100, with a standard deviation of approximately 15

points and a measurement error of 5 points. Hall v.

Florida, 134 S. Ct. 1986, 1994-95 (2014) (citing Am.

Psych. Ass’n, Diagnostic & Statistical Manual of

Mental Disorders 37 (5th ed. 2013)). Differences of

one tenth of one point, let alone two thousandths,

are not measurable and do not reflect any difference

in cognitive function. Cf. id. at 1995 (“A score of 71,

for instance, is generally considered to reflect a

range between 66 and 76 with 95% confidence and a

range of 68.5 and 73.5 with a 68% confidence.”). The

agency does not explain its basis for attributing any

significance to a difference in IQ of 0.00209 points,

nor does it show that avoiding such an IQ loss could

have any impact on any individual's future earnings.

Nonetheless, EPA proceeded to translate this sav-

ings into economic terms, projecting a total annual

benefit due to “avoided IQ loss” of $500,000 to $6

million (in 2007 dollars), depending on the discount

rate applied. See RIA at ES-6, Table ES-4. To reach

that figure, EPA adopted the estimate, based on

lead-exposure studies and Department of Education

data of the annual income gain attributed ‘o each

additional year in school, that the loss of an IQ point

reduces an individual's annual income by $892 to

$1,958. Id. at 4-47 to 4-48, 4-90. See also 77 Fed.

Reg. at 9,428/2. And this, the agency acknowledges,

may be overly optimistic due to its assumption that

emissions reductions will immediately translate into

reductions in methylmercury levels. RIA at 4-3 n.1.

The costs of regulation, which EPA also estimated,

are somewhat higher. According to the agency, the

annual “total social costs” of Section 112 regulation

are $9.6 billion, “approximated by the sum of the

compliance costs and monitoring and reporting

costs.” 77 Fed. Reg. at 9,305-06 & Table 2. So the

total costs outweigh the benefits by a factor of be-

tween roughly 1,600 to 1 and 19,000 to 1. Whether

viewed in isolation or compared to the cost of regula-

tion, the benefits that EPA projects—even assuming

the correctness of all of the agency’s assumptions—

can fairly be characterized as de minimis.

Il. EPA’s Actual Target Was Power Plants’

Particulate-Matter Emissions

EPA’s rulemaking publications, related regulatory

actions, and public statements suggest why the

agency would choose to establish a regulatory pro-

gram that—according to the agency’s own scientific

assessment—addresses a non-existent risk at enor-

mous cost. By all appearances, mercury was a Trojan

horse used to justify regulation under Section 112,

when EPA’s real focus was particulate-matter emis-

sions by power plants, which the agency has target-

ed across numerous rulemakings in recent years.

The rule here fits that pattern, claiming enormous

benefits almost exclusively from reductions in par-

ticulate-matter emissions and directly regulating

such emissions as a “surrogate” for certain hazard-

ous air pollutants (“HAPs”).

A. Particulate Matter Co-Benefits Have

Provided the Primary or Only Economic

Justification for EPA’s Recent Air Rules

Whether or not EPA is conducting a “war on coal,”

as some maintain,'4 the agency’s recent rulemakings

have targeted coal-fired power plants in an unprece-

dented fashion. The president has identified “chang-

ing the way we use energy” through EPA regulation

14 See, e.g., Rep. Jim Sensenbrenner, President Obama's War on

Coal (June 4, 2014), available at

http://sensenbrenner.house.gov/news/documentsingle.aspx?Doc

umentID=383480.

as a national priority.’° And his views on coal-fired

generation are well-known: “[i]f somebody wants to

build a coal-fired power plant, they can. It’s just that

it will bankrupt them.”?®

Although the administration has stated that it op-

poses coal-fired plants due to their carbon-dioxide

emissions,!? EPA’s stated justification for targeting

power plants in recent rulemakings has been their

particulate-matter emissions. “Particulate matter

(PM) is an air pollution term for a mixture of solid

particles and liquid droplets found in the air.” EPA,

Particulate Matter Research.'* Since 1971, it has

‘

15 See Remarks by the President on Climate Change (June 25,

2013), available at http://www .whitehouse.gov/the-press-

office/20 13/06/25/remarks-president-climate-change.

16 Erica Martinson, Uttered in 2008, sti'i haunting Obama in

2012, Politico Pro (Apr. 5, 2012), available at

http://www.politico.com/news/stories/04 12/74892.htm!].

1? E.g., Presidential Memorandum: Power Sector Carbon Pollu-

tion Standards (June 25, 2013), available at

http://www.whitehouse.gov/the-press-

office/20 13/06/25/presidential-memorandum-power-sector-

carbon-pollution-standards (directing EPA to regulate carbon

emissions from new and existing power plants under Clean Air

Act); EPA Administrator Gina McCarthy, Remarks on Carbon

Pollution Standards for New Power Plants (Sept. 20, 2013),

available at http://yosemite.epa.gov/opa/admpress.nsf/8d49f7

ad 4bbcf4ef852573590040b7 f6/a23 1 3a88f5e593bc8525 7bf1l 00Gca

2ba!OpenDocument; The White House, Climate Change and

President Obama’s Action Plan, available at

http://www.whitehouse.gov/climate-change.

18 Available at http://www.epa.gov/airscience/air-

particulatematter.htm.

been regulated under Sections 108-110 of the Clean

Air Act, as part of the National Ambient Air Quality

Standards (“NAAQS”) regime. See 36 Fed. Reg. 8,186

(Apr. 30, 1971) (promulgating national primary and

secondary PM standards). It is currently subject to

two separate sets of standards, for “PMio” and for

“PMo25,” labels which refer to particles smaller than

10 microns and those smaller than 2.5 microns.'9

EPA’s cost-benefit models score reductions in par-

ticulate-matter emissions favorably, allowing the

agency to claim enormous benefits for regulations

that reduce such emissions. Generally, these are “co-

benefits,” which is how EPA refers to incidental re-

ductions in emissions of a substance that is not the

stated target of regulation. See 77 Fed. Reg. at

9,305/3.

Particulate-matter co-benefits are credited with

much, and in some instances all, of the claimed mon-

etized health benefits of recent EPA air rules. EPA

calculates these particulate-matter co-benefits by in-

ferring a causal connection between regional ambi-

ent concentrations of particulates and regional

health, particulerly as concerns lung function. See

generally EPA, Co-Benefits Risk Assessment

(COBRA) Screening Model (Sept. 2014); RIA at 5-

11. The agency projects that health will be improved,

18 A micron, or micrometer, is one one-millionth of a meter.

20 Available at http://epa.gov/statelocalclimate/resources/

cobra.htm1l.

up to and including the avoidance of premature

deaths, in proportion to the decrease in particulate-

matter emissions resulting from a given rule. In oth-

er words, it assumes a linear relationship between

reductions and health benefits. See generally RIA 5-1

to 5-10. Those benefits are then assigned an econom-

ic value. See id. at 5-11 to 5-12. Outside scientists

have criticized this approach as unsupported by suf-

ficient evidence of a causal link between particulate

reductions and health benefits at the relatively low

levels modeled by EPA.?!

The MATS rule claims enormous “co-benefits” from

the reduction of particulate matter and related sub-

stances, despite being promulgated under statutory

authority that does not address that substance. EPA

projects total monetized benefits from the MATS

rule of between $37 and $90 billion. 77 Fed Reg. at

9,306, Table 2. Of these projected benefits, almost all

21 A Harvard toxicologist testifying before Congress described

EPA’s methodology as “highly imprecise,” faulting the agency

for failing to conduct “an evaluation of all available relevant

science,” cherrypicking “two observational epidemiology studies

conducted when air pollution levels were generally above cur-

rent standards,” and “assum[ing] a causal relationship’ be-

tween particulate reductions and health benefits even though

“dozens of other epidemiology studies are available and many

report no such correlations.” This amounts, she concluded, to “a

biased assessment of the available data.” The American Energy

Initiative: A Focus on What EPA’s Utility MACT Rule Will Cost

U.S. Customers: Hearing Before the Subcomm. on Energy &

Power, H. Comm. on Energy & Commerce (2012) (testimony of

Dr. Julie Goodman).

of them are attributed to projected incidental reduc-

tions in power plants’ particulate-matter emissions.

Specifically, EPA projects PM2»5-related co-benefits of

$36 billion to $89 billion. In fact, the only other

monetized benefits are the [Q-related benefit of less

than $6 million and climate-related co-benefits of

$360 million. Id.

Any doubt as to EPA’s true purpose in deciding to

regulate under Section 112 is resolved by its publici-

ty for the rule, which cites projected particulate-

matter co-benefits as the rule’s primary justification.

See, e.g., EPA, Mercury and Air Toxics Standards—

Healthier Americans (touting projected particulate-

matter-related benefits);?2 EPA Fact Sheet: Mercury

and Air Toxics Standards (same). These asserted

benefits. most relating to pulmonary function, have

nothing to do with the fractional IQ loss-avoidance

the agency projects to flow from mercury reductions,

the ostensible focus of its “appropriate and neces-

sary” finding and purpose of Section 112 regulation.

In this respect, EPA’s press releases and “fact

sheets” are a better guide to the agency’s thinking

than its obfuscated rulemaking publications.

This is consistent with EPA’s approach in other re-

cent air rulemakings, including those aimed at pow-

er plants. In the proposed carbon-dioxide regulations

22 Available at http://www.epa.gov/mats/health. html.

23 Available at http://www .epa.gov/mats/pdfe/20111221

MATSimpactsfs pdf.

for existing power plants under Clean Air Act Sec-

tion 111(d) (which the agency calls the “Clean Power

Plan”), EPA projects annual net monetized benefits

from the proposed rule of between $46 billion and

$84 billion. See 79 Fed. Reg. 34,830, 34,840—41, Ta-

ble 2 (June 18, 2014). Projected reductions in emis-

sions of particulate matter and its precursors ac-

count for over half of that figure. See id. at 34,937-—

39, Tables 14—16.*4

The Section 111(d) carbon rulemaking is only the

most recent example of this trend in EPA rule-

makings. See also, e.g., 75 Fed. Reg. 35,520, 35,588/3

(June 22, 2010) (claiming $2.2 million in direct bene-

fits from revised sulfur-dioxide standard and $15 bil-

lion to $37 billion in co-benefits due to reductions in

particulate matter); 75 Fed. Reg. 9,648, 9,669/3

(Mar. 3, 2010) (promulgating Section 112 standards

for stationary compression ignition engines used in

power plants and other facilities and projecting

monetized benefits only for particulate-matter co-

reductions); RIA, Existing Stationary Spark Engine

Hazardous Air Pollutant Rule at 1-3, Table 1-1 (Jan.

2013) (projecting monetized benefits only for inci-

dental co-reductions of particulate matter and its

24 If the annual net benefits that EPA projects from the MATS

rule and Clean Power Plan together ($164 billion) were a coun-

try’s economic output, that country would have the 57th largest

GDP in the world, falling between the Vietnam and Bangla-

desh. See 79 Fed. Reg. at 34,840, Table 2; 77 Fed. Reg. at 9,306,

Table 2; World Bank, GDP (2015), available at

http//data.worldbank.org/indicator/NY.GDP.MKTP.CD.

precursors); RIA, Industrial, Commercial, and Insti-

tutional Boilers and Process Heaters Hazardous Air

Pollutant Rule (Feb. 2011), at 1-4 to 1-5, Tables 1-1

& i-2, 7-21, Tables 7-2 & 7-3 (same); RIA, Final

Ozone NAAQS at 34, Figs. S2.5 & $2.6 (July 2011)

(showing particulate-matter monetized benefits

greatly outweighing ozone benefits); RIA, New

Source Performance Standards and Existing Source

Emission Guidelines for Sewage Sludge Incineration

Units at 1-3, Table 1-1, 5-10, Table 5-3 (Sept. 2010)

(projecting particulate matter-related benefits of

$110 to $270 million, out of total monetized benefits

of $130 to $320 million).

In sum, the available evidence suggests that EPA’s

true purpose in pursuing Section 112 regulation here

was not to reduce risks associated with mercury ex-

posure but to target coal-fired power plants and their

particulate-matter emissions.

B. The MATS Rule Directly Regulates

Particulate-Matter Emissions

To call these particulate-matter-related benefits

“incidental” is a bit of a misnomer, because the

MATS rule actually regulates particulate-matter

emissions directly. The agency treats them as a

proxy or “surrogate” for measuring certain sources’

emissions of metallic HAPs. See, e.g., 76 Fed. Reg. at

25,027/3; id. at 25,030-31 (“Continuous Compliance

Requirements”). See also 77 Fed. Reg. at 9,402/1

(“Although the objective of the emission limits we

are establishing is to reduce the risks associated

with HAP emissions, the limits are based in part up-

on the demonstrated capabilities of control technolo-

gies which are installed on existing sources. Except

for [mercury], the best PM controls provide the best

controls of metal emissions.”).

This means that the MATS rule functions as a di-

rect regulation of particulate matter, such that emit-

tors may achieve compliance by controlling particu-

late-matter emissions.

Ill. EPA’s Decision Not To Consider Cost

Allowed It To Aggrandize Its Power at the

Expense of States and Their Citizens

Particulate matter is a pollutant of nationwide

concern that is regulated as a “criteria” pollutant

under Sections 108, 109, and 110 of the Clean Air

Act. As a pollutant of nationwide concern, the Clean

Air Act authorizes EPA to set federal standards but

grants states the authority to determine how to meet

the federal standards. By refusing to consider costs

when deeming it “appropriate and necessary” to reg-

ulate power plants’ HAP emissions, EPA was able to

circumvent the Clean Air Act’s statutory bar on reg-

ulating criteria pollutants as hazardous air pollu-

tants and to aggrandize its authority at the expense

of that of the states and their citizens.

Particulate matter is subject to National Ambient

Air Quality Standards. Under Section 108 of the

Clean Air Act, 42 U.S.C. § 7408, EPA prepares a list

of air pollutants that “cause or contribute to air pol-

lution which may reasonably be anticipated to en-

danger public health or welfare[,] the presence of

which in the ambient air results from numerous or

diverse mobile or _ stationary sources.” Id.

§ 7408(a)(1). The agency then issues “air quality cri-

teria” reflecting “the kind and extent of all identifia-

ble effects on public health or welfare which may be

expected from the presence of such pollutant[s] in

the ambient air, in varying quantities.” /d.

§ 7408(a)(2). Accordingly, pollutants regulated under

this program are known as “criteria” pollutants.»

EPA then, under Section 109, 42 U.S.C. § 7409,

prescribes and periodically revises national ambient

air quality standards that, “allowing an adequate

margin of safety, are requisite to protect the public

health.” Jd. at § 7409(b)(1). These are “primary”

standards; the agency may also promulgate “second-

ary” standards for the same substances to “protect

the public welfare.” Id. at § 7409(b)(2). See generally

Whitman v. Am. Trucking Assn’s, 531 U.S. 457

(2001).

Finally, under Section 110, 42 U.S.C. § 7410,

states prepare “implementation plans” that lay out

measures to ensure that the air-quality regions with-

in their jurisdiction will attain the standards. See,

25 To date, EPA has listed six “criteria” pollutants: particulate

matter, sulfur oxides, nitrous oxides, ozone, carbon monoxide,

and lead. The agency last revisited the particulate-matter

standards in 2013. 78 Fed. Reg. 3,086 (Jan. 15, 2013) (final

rule) (promulgating stricter primary standard for PM2zs but re-

taining existing standard for PMio).

e.g., Util. Air Regulatory Grp. v. EPA, 134 8. Ct.

2427, 2435 (2014).

Due to this division of authority, federal power to

second-guess a state’s choices as to how to control

their emissions is highlv limited. EPA must approve

an implementation plan that will attain the national

standards in the requisite time frame, regardless of

whether or not the agency would prefer more strin-

gent action or a different set of emission limitations

than those prescribed by the state. See Union Elec.

Co. v. EPA, 427 U.S. 246 (1976). Only if a state fails

to submit an acceptable plan may EPA impose its

own federal implementation plan, see § 7410(c). This

program is therefore a prime example of “cooperative

federalism” under the Clean Air Act.

Congress anticipated the possibility that the Sec-

tion 112 program for hazardous air pollutants could

be used by EPA to circumvent these limitations on

its own authority and undermine state authority. It

specifically preciuded EPA from doing so. In Section

112(b)(2), Congress prohibited EPA from regulating

criteria pollutants—like particulate matter—as haz-

ardous air pollutants except under certain defined

circumstances that EPA has not determined apply to

particulate matter. 42 U.S.C. § 7412(b)(2). Con-

gress’s prohibition on surreptitious regulation of cri-

teria pollutants in the Section 112 program was nec-

essary to ensure that states retain their primary au-

thority to decide how to attain the national ambient

air quality standards for these criteria pollutants

within their borders. Accordingly, Congress’s prohi-

bition is broadly construed, extending “not only to

rules that literally list a criteria pollutant as a HAP

but also to any rule that in effect treats a criteria

pollutant as a HAP” Nat7 Lime Ass'n v. EPA, 233

F.3d 625, 638 (D.C. Cir. 2000).

But EPA purposely disregarded the Clean Air Act's

limitations in order to aggrandize its regulatory au-

thority. In its “appropriate and necessary” determi-

nation, EPA claimed that it could not rely on the na-

tional ambient air quality standards program to con-

trol HAPs from coal-fired power plants because

“states have the ultimate responsibility for imple-

menting the NAAQS”; pollution-control “decisions

are unique to each state”; and the agency “cannot

predict with any certainty precisely how states will

ensure” that necessary reductions are realized. 76

Fed. Reg. at 24,990/3. In contrast, under Section 112,

the agency directly imposes requirements on sources

nationwide and states play no role in developing and

promulgating emission limits, only a ministerial role

in administering the program. While EPA offered

this as a reason for regulation, given that the MATS

rule is a pretext for direct regulation of particulate

matter from coal-fired power plants, this “basis” for

EPA’s decision highlights its unlawfulness.

But even then EPA’s actions are suspect. The regu-

latory regime of Sections 108—110 is designed to pro-

vide an “adequate margin of safety...to protect the

public health,” 42 U.S.C. § 7409(b)(1), but the agen-

cy’s reliance on particulate-matter reductions to pro-

ject the benefits from air regulations of other sub-

stances promulgated under other statutory authori-

ty—here, the Section 112 hazardous air pollutants

program—contravenes the overall design of the Act

and casts doubt on the reasonableness of EPA’s “ap-

propriate and necessary determination. This partic-

ularly is the case because EPA set the federal par-

ticulate-matter standard at the requisite level less

than one year after the Mercury Rule, see 78 Fed.

Reg. 3,086 (Jan. 15, 2013), casting doubt on both the

appropriateness and the necessity of obtaining fur-

ther reductions incidentally through Section 112

regulation of coal-fired power plants.

Congress could have enacted a statute that allows

EPA to address particulate matter—or any other pol-

lutant—in whatever manner the agency sees fit. In-

stead, the Clean Air Act that Congress actually en-

acted recognizes that “air pollution prevention...and

air pollution control at its source is the primary re-

sponsibility of States and local governments.” 42

U.S.C. § 7401(a)(3). EPA should not be allowed to

arrogate that power to itself by twisting the lan-

guage of Section 112.

CONCLUSION

The point of the MATS rule is not to reduce emis-

sions of hazardous air pollutants from power plants,

but to escape the limitations that Congress placed on

EPA's authority to target particular industries and

sources. The rule should be vacated.

Respectfully submitted,