Court Slams Failure to Study Cost of Snubbed Pollution Controls

The 2019 construction site in Waynesboro, Georgia, of Vogtle Units 4 at the Alvin W. Vogtle Electric Generating Plant. (Hyosub Shin/Atlanta Journal-Constitution via AP)

WASHINGTON (CN) — The D.C. Circuit chided the Environmental Protection Agency on Tuesday for not actually breaking down the costs of pollution controls it said would not be cost-effective for power plants to implement.

Maryland and Delaware brought the challenge here two years ago, complaining that the lack of EPA regulation stymied their efforts to meet national air-quality standards. Concerned about pollution spewing across state lines from power plants upwind of them, Delaware said the EPA should optimize the so-called catalytic controls at certain power plants, while Maryland sought noncatalytic controls at four others.

“Catalytic and noncatalytic controls both involve injecting a reagent into an exhaust flue, where it reacts with NOx to produce molecular nitrogen and water,” according to Tuesday’s ruling, which is unsigned. “As their names suggest, catalytic controls facilitate this reaction with a catalyst. Noncatalytic controls do not.”

According to a study published three months ago in the journal Nature, about half the premature deaths caused by poor air quality in most states can be linked to neighboring states’ pollution.

When the EPA denied Maryland and Delaware’s petitions, the states sought relief from the D.C. Circuit. The court found merit Tuesday only in the challenge over noncatalytic controls, saying the EPA relied improperly on a finding it made in 2016 that operating noncatalytic controls at certain power plants would not be cost-effective.

The EPA had said it relied on the finding — part of an update to its rule on cross-state air pollution — because the four noncatalytic units Maryland had challenged “are relatively small in size and have low emission levels, indicating that the units have a relatively limited ability to substantially reduce NOx emissions.”

But the D.C. Circuit invalidated part of the update last year in a separate case led by Wisconsin because it determined the finding was impermissibly “partial.”  Specifically, the EPA had “focused solely on near-term emission reductions,” the panel wrote Tuesday, because of the July 2018 attainment deadline for downwind states.

The EPA itself conceded that its judgment about whether noncatalytic controls are cost-effective may change when it conducts the new comparative analysis required by the ruling in Wisconsin.

“As relevant here,” the 48-page ruling states, “in choosing a cost-effectiveness threshold, the update rule did not consider control strategies that could not have been implemented in time for the 2017 ozone season.”

Whether this means the controls will be implemented, however, is another matter.

“We recognize that Wisconsin does not imply that noncatalytic controls are cost-effective — or even that the EPA, on remand, will choose a different cost threshold than the one it originally did,” Tuesday’s ruling states. “Indeed, counsel suggested at argument that the EPA’s judgment about non-catalytic controls ‘probably’ would not change.”

Citing precedent from 1943, however, the panel emphasized that their duty is to “review an agency’s action on the basis of reasons it actually gave, not ones it hypothetically could.”

“The EPA cannot rely mechanically on the update rule for the proposition that noncatalytic controls are not cost-effective,” the panel wrote. “And the denial does not seriously suggest that its brief discussion of these particular units amounted to a standalone cost-effectiveness analysis.”

U.S Circuit Judges Karen Henderson, Merrick Garland and Gregory Katsas heard arguments on the case back in January.

Deputy Delaware Attorney General William Kassab did not return a request for comment Tuesday, nor did Assistant Maryland Attorney General Michael Strande.

The Department of Justice has also failed to return a request for comment.

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