This morning's headlines provided an excellent example of how interest groups and news media tend to impart spin on even the clearest set of facts. The latest spinning comes in the wake of the U.S. Supreme Court's ruling in a case involving the Environmental Protection Agency's power to regulate toxic mercury emissions from the nation's coal-fired power plants. The case was brought by coal and utility industry interest groups and 21 Republican-led states.
The slant in most mainstream news coverage, at least initially, would lead most people to think the EPA and the Obama administration have just been seriously smacked down by the court, a bare majority of which agreed with complaints from coal interests. That's the way Republicans played it, executing high-fives all around.
A typical example of initial coverage ran on the Associated Press national wire, used by many newspapers and radio/TV outlets. The AP's headline said the court had rejected EPA mercury limits, leading its story with: "A divided Supreme Court on Monday ruled against federal regulators' attempt to limit power plant emissions of mercury and other hazardous air pollutants."
In truth, however, and still underreported is that mercury pollution and coal's heyday remain numbered. Slate.com summed up the good news coming out of this situation in a simple headline that escaped most news media cognition: "Bad News: Supreme Court Blocked Power Plant Rules. Good News: The Era of Coal Is Over."
Politico.com was even more succinct: "Supreme Court's ruling comes too late for coal."
Go below the fold for more on the latest coal folderol.
As ThinkProgress.org pointed out, the high court took a very narrow reading in its decision. The justices didn’t actually, as many outlets reported, “strike down” the EPA’s regulations of toxic air pollution. Rather, said ThinkProgress:
What the Supreme Court did do was put the regulation — which limits toxic heavy metal pollution like mercury from coal and oil-fired plants — in jeopardy. In a 5-4 decision led by Justice Antonin Scalia, the court said the EPA acted unlawfully when it failed to consider how much the regulation would cost the power industry before deciding to craft the rule.
However, that doesn’t mean the rule is gone. In fact, it’s still in place at this very moment. Right now, power plants are still required to limit their emissions of mercury, arsenic, chromium, and other toxins. A spokesperson for the EPA confirmed this to ThinkProgress.
The court's ruling requires the EPA to reconsider mercury containment costs to power plants before deciding whether the regulations are "appropriate and necessary." If the EPA rearranges its order of battle, then presumably it will be on solid ground again. CNN, whose political page filed a dispatch at the top declaring that the high court's ruling was
"a loss for the Obama administration," went on deeper in its coverage to say
this:
[T]he EPA argued that it didn't take costs into consideration initially because the threshold decision is meant to be based on public health alone. Lawyers for the agency said that once it was determined that the air pollutants from coal and oil fired power plants posed a major hazard to public health they moved to the next stage of process under the Clean Air Act to determine what the limits on these pollutants should be. When they considered that issue, they did take costs into consideration.
Ironically, while this case was pending, EPA did make its calculations. ThinkProgress noted that the Supreme Court could have just thrown out the entire EPA proceeding, ending mercury containment entirely.
"It also could have doubted the EPA’s calculation of the benefits of limiting mercury and other toxic pollution, which include the prevention of 11,000 premature deaths every year and annual monetized benefits of between $37 billion and $90 billion."
Arguably, the focus of the plaintiffs on EPA's lack of up-front cost analysis was mostly just a legal ploy by anti-regulation polluters trying to buy themselves more time. So this EPA process dispute amounts to a difference without distinction, except that it will force the EPA to waste time going before another court and justify its actions, past and present.
The EPA will now go to the D.C. Circuit court for that further review. ThinkProgress reported that the circuit court conceivably could invalidate the EPA's rule. That could reset the entire pollution control clock, delaying further action by years. "But," noted ThinkProgress, the circuit court could also uphold the EPA rules "if the court finds more harm than good would be done by repealing it, or if the agency can offer a reasonable explanation of why costs weren’t included early on in the administrative record."
Jim Pew, an attorney at Earthjustice who worked on the case, told ThinkProgress the D.C. Circuit has often left rules in place under similar circumstances.
But isn't this ruling still a setback for the EPA, at least politically? Many conservatives and fossil-fuel apologists would like the public to think so, but the fact is that the figurative cows already have left the barn.
ThinkProgress noted that "many of the requirements set by the mercury regulations are already in place. A big chunk of power plants were forced to be in compliance with the rule back in April, meaning many power plants already have their emissions control systems installed. Of course, if the ruling is eventually invalidated, those plants could just turn those systems off if they really wanted to." And, importantly, if a newly aroused public would let them, at this point.
Slate said the ruling:
... is essentially just a delay in what is likely to be an inevitable crackdown on coal emissions. “It is very likely that the mercury rule will ultimately be upheld, and that it will remain in place as the legal process continues,” Richard Revesz, director of the Institute for Policy Integrity and dean emeritus of NYU Law School, said in a press release... .
Coal use in America is dying a long, slow death as cheaper and cleaner sources of energy emerge. This historic shift has been led by a boom in domestic natural gas, quickly expanding sources of cheap renewable energy, and awareness of coal’s damaging effects on public health and the environment. Earlier this year, a study concluded that, in order to preserve a safe and stable climate, the vast majority of the world’s coal reserves must stay in the ground. The Obama administration’s proposed rules, now delayed, essentially just sped up a process that’s taking place anyway.
How do you know this ruling is not all that momentous? Because while taking a victory lap, Republican lawmakers are urging more states to ignore the EPA's air pollution restraints, even though their basis, the federal Clean Air Act, earlier received the Supreme Court's blessing. Sen. Majority Leader Mitch McConnell, a Republican from the coal-producing state of Kentucky, reiterated his warning to governors around the country not to join the EPA’s climate change plan. Another instance of, "Obey only Republican-approved laws."
But here's the underlying irony in all this: By fighting the EPA now, the coal interests may very well have hastened the inevitable demise of their industry. Again, Slate:
Monday’s ruling actually strengthens the government’s case in defending legal challenges to the Obama administration’s plan to reduce power plant emissions. The quirk here is that, according to Clear Air Act scholars, the order of the regulations matters: Coal companies didn’t want to navigate a mandate to reduce carbon emissions after a separate rule to limit mercury was already on the books. If the carbon dioxide rule can be finalized first—which is more likely with Monday’s delay to the mercury rule—it may pave the way for tougher emissions standards to happen sooner. And that just might be the death knell for coal.
7:20 PM PT: POLITICSUSA.COM put a coda on the argument that the EPA and clean were the big winners in the Supreme Court's 7-2 ruling on greenhouse gases: "The EPA declared victory in a statement, 'Today is a good day for all supporters of clean air and public health and those concerned with creating a better environment for future generations. We are pleased that the Court’s decision is consistent with our approach to focus on other Clean Air Act tools like the Clean Power Plan to limit carbon pollution as part of the President’s Climate Action Plan.'
"Meanwhile, Justice Scalia grumbled that the EPA got almost everything they wanted out of the ruling.
"The EPA wanted the power to regulate 86% of emissions, the court ruled that they could regulate 83%.
"Republicans and the Koch Brothers have been contesting the EPA’s authority to regulate greenhouse gas emissions for years, so this is a major loss for the Kochs and a definitive step in the fight against climate change."