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.