What Everyone Is Getting Wrong About The Supreme Court’s Mercury Pollution Ruling
BY EMILY ATKIN POSTED ON JUNE 29, 201


Despite reports to the contrary in the New York Times, the Wall Street Journal, and briefly this publication, the Supreme Court didn’t actually “strike down” the EPA’s regulations of toxic air pollution from power plants on Monday.

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.

What the Supreme Court’s ruling does is send the current mercury rule to the D.C. Circuit court for further consideration. The D.C. Circuit could very well invalidate the rule. But it could also uphold it, 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.

The D.C. Circuit has often left rules in place under similar circumstances...