Colorado Legislature Isn’t Waiting For Supreme Court Decision On EPA’s Mercury Rule

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TIME’S A WASTIN’: Ahead of the Supreme Court decision on the EPA’s Mercury Rule, the Colorado Legislature is taking matters into it’s own hands.

Colorado is not bending easily to the new federal restrictions from Environmental Protection Agency’s Mercury and Air Toxics Standards (MATS), also known as the “Mercury Rule,” which is currently being disputed in the United States Supreme Court.  Twenty-two states, including Colorado, have sued the federal government over the new regulations.

The regulatory burdens of MATS, combined with economic and pragmatic considerations are driving states like Colorado to take on the EPA Mercury Rule and other facets of its Clean Power Plan prior to the Supreme Court ruling.

On April 9, the Colorado State Senate passed the Colorado Electric Consumers’ Protection Act, a bill which forces regulatory federal agencies, including the EPA, to coordinate with the state Legislature and the Colorado Public Utilities Commission in its decision-making processes.  This bill states that the emission guidelines of the EPA “will have a major impact on the economy of Colorado by regulating how electricity is produced, transmitted, distributed and consumed within Colorado.”

In an attempt to give back a measure of control to the state in the regulation of a critical energy resource, the Colorado Electric Consumer’s Protection Act goes on to say: “The Colorado Air Quality Control Commission shall not submit a state plan to the EPA pursuant to the Federal Emission Regulations unless the proposed state plan is first reviewed by the commission.”

One single mother, who wanted to remain anonymous, testified at the Senate committee hearing for the Colorado Electricity Consumers’ Protection Act and summed up the issue with this statement:

I’m a single mom and every dollar counts to me. Sure, I want a clean environment for my kids, and I believe that where I live in Colorado it is clean and the air is clear. But if I’m paying 2 or 3 hundred dollars a month for electricity, the real problem is that when my kids get sick, I have to choose between having lights and heat or medicine. This is what is really hurting people like me.

Colorado’s coal-fired electricity-generating plants have been targeted by federal “clean air” regulations for decades.  The EPA’s 2012 MATS accelerated the nationwide shuttering process of these plants which, in 2010, generated 45 percent of electricity in the United States.

Since 2010, in Colorado alone, four major coal-fired power plants have been closed with more retirements planned in the coming years. The so-called “War on Coal” has also been waged on the jobs front, where MATS in Colorado have contributed to the closure of numerous mines and the loss of hundreds of jobs during that same time period. According to the Colorado Division of Reclamation and Mining Safety, Colorado coal production is down nearly 40 percent in the last 10 years.

The current Supreme Court case, State of Michigan v. Environmental Protection Agency, is emblematic of the growing pushback by states against untenable federal regulations.  One complaint against the EPA in the case is the $9.6 billion yearly implementation cost of MATS. Another charge is that the EPA uses dubious cost-benefit analyses to exert its regulating authority over states, and imposes unnecessarily stringent requirements on energy producers.

The EPA has argued that its MATS standards were created to protect public health and mitigate the effects of anthropogenic climate change. Measuring the success of these goals is highly subjective, given the complexity of determining what factors may or may not impact human health related to mercury and other air toxins, and the fact that climate change science is highly disputed and inconclusive.

The science may not be settled, but the fact that electricity consumers are struggling with the costs of the new EPA rules is unarguable. MATS, at $9.6 billion per year, is one of the most expensive single regulations in the nation’s history. Since many states have resorted to mandating “renewable” energy resources to meet the EPA regulations, electricity rates are up an average of 38 percent where those mandates have been imposed.

For example, the annual average energy cost per household for coal-generated electricity is around $2,300. But the same household would pay an annual rate of $8,600 for solar-generated electricity. Although solar power is in compliance with the EPA’s Mercury Rule, the cost to the ordinary electricity consumer is crushing.

The Environmental Protection Agency was created in the 1970s in response to genuine environmental problems caused by some industries. But as industries have worked to correct past errors, and pollutants and toxins have been removed from the environment through general best practices, the EPA has only grown to become more overreaching and punitive.

While the Supreme Court decides how it will rule on MATS, states are fighting back on behalf of consumers and their own economies, against regulations they believe go too far at too great a cost.