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On January 1, 2017, the KHI News Service became part of KCUR public radio’s new initiative, the Kansas News Service. The Kansas News Service will continue to cover health policy news and broaden its scope to include education and politics. All stories produced by the former KHI News Service are archived here. Stories and photos may be republished at no cost with proper attribution and a link back to

U.S. Supreme Court: EPA must consider cost when regulating power plant emissions

By Bryan Thompson | June 30, 2015

The U.S. Supreme Court, in a 5-4 decision, ruled Monday that the Environmental Protection Agency must take cost into consideration when regulating power plant emissions.

Kansas was one of 20 states that joined a challenge that Michigan officials filed against a 2011 EPA rule requiring electric utilities to minimize their emissions of mercury and other toxic substances from their smokestacks.

In a prepared statement, Kansas Attorney General Derek Schmidt said Monday that the Mercury and Air Toxics Standards (MATS) rule would have increased the cost of electricity.

“Today’s ruling is a big win for anyone who pays for electricity,” Schmidt said. “In my view, the Supreme Court did the right thing by concluding that the law requires EPA to take into account the cost of the new regulations it is proposing. In the real world, cost matters.”

“Today’s ruling is a big win for anyone who pays for electricity. In my view, the Supreme Court did the right thing by concluding that the law requires EPA to take into account the cost of the new regulations it is proposing. In the real world, cost matters.”

- Kansas Attorney General Derek Schmidt

Brad Loveless, executive director of environmental services for Westar Energy, said the most effective way to remove mercury from coal exhaust is by injecting activated carbon dust into the smokestack gases. The mercury binds to the carbon, which can then be collected and disposed of.

He said the equipment is expensive to install, the monitoring is costly and the activated carbon would be an ongoing expense.

“So far, we’ve spent about $15.6 million on MATS compliance, and we have about $6.1 million that we haven’t yet spent which will now stay on hold until the courts and EPA settle this,” Loveless said. “In addition, the annual activated carbon costs are close to $5 million.

“We’ve delayed expenditures in order to gain as much certainty as we could, but early on we needed to test and monitor to determine which was the most cost-effective product for us to use.” 

Loveless said some of the other pollution equipment at power plants operated by Westar, the largest electric utility in Kansas, also helps to remove mercury. But he questioned whether the additional reductions would be worth the cost.

“We clearly will do what the law requires, but we want to be good stewards of our money and spend it wisely — make sure there is a real benefit to the public in spending that,” Loveless said. “We think there’s some wisdom in the Supreme Court’s challenge to EPA to say, ‘Make sure you look at the cost and the benefits, and make sure this is worth all the money it’s going to cost for a lot of years.’”

Loveless said as smokestack technology improves and gets cleaner over time, it may approach a point of diminishing returns.

“It could be a very, very nasty substance, but at low levels you don’t even know you’re exposed to it,” said Loveless. “That’s the business of the EPA. They have to use those studies to show at what levels there are no longer any health effects to certain discharges and call it quits at that point. But until they get to that point, we all fully expect as citizens to be protected from those dangerous levels of substances.”

Attorney Bob Eye, who represents the Sierra Club’s Kansas Chapter, said mercury discharges remain a concern.

“Mercury bioaccumulates in the environment,” Eye said. “It’s a very persistent and long-lasting metal, and we’re far from being to the point where we could declare victory on mercury. Every day these coal plants operate, there are additions to mercury pollution in the environment. This is an extremely important issue, and it’s not going to go away because of this particular ruling.”

While Eye said the Supreme Court decision was a disappointment, he expects the EPA to recognize that the objective it was trying to reach with the MATS rule remains a worthwhile goal.

“They may have to back up and redo the analytical framework so that it does make accountings for the costs and the benefits in a way that tracks close to the court’s decision,” Eye said. “It’s on a timeline that’s slower than what those of us who wanted to see these restrictions put into place many years ago would prefer, but I do think that we’re on the march toward a significant reduction in mercury pollution over time.”

Eye realizes it can be difficult to analyze the benefits of reducing mercury emissions.

“Health costs are frequently the orphan in these kinds of cost-benefit analyses,” he said. “Had we been doing health analyses for pollutants over the years, we would have gotten rid of coal-fired plants a long time ago. Those kinds of impacts are only now being better understood and made part of regulatory decisions.”

Justice Antonin Scalia wrote the high court’s majority opinion. He noted that the EPA had estimated it would cost utilities $9.6 billion a year to comply with the rule. They initially figured the direct benefits to the public at between only $4 million and $6 million a year. A regulatory impact analysis later adjusted that figure to a range between $37 billion and $90 billion. That calculation, however, includes reductions of other pollutants, such as sulfur dioxide and particulate matter, which are not covered by the hazardous air pollutants program.