Monday’s Supreme Court ruling on Mercury and Air Toxic Standards (Utility MACT) has lately been framed as by conservatives as a blow to “crippling regulations” chauvinistically made with zero consideration for the facts on the costs and benefits of regulation, and by liberals as an attempt to boost polluting industry at the cost of the public’s health.

Starkly grim statements have left both sides at each other’s throats, but the debate has been poorly framed: contrary to the right, the EPA has already considered the costs of MACT regulations, and opposing statements have oftentimes been deceptive; contrary to the left, the ruling is more concerned with procedures than the very existence of the MACT regulations.

Conservatives have oftentimes cited the National Economic Research Associate’s (NERA) study, predicting an 11.5 percent rise in costs in electricity by 2016 and $17.6 billion in annually. It has been noted, however, that the study was commissioned by the American Coalition for Clean Coal Electricity, a group focused on political lobbying in favor of coal producing entities. NERA itself has long been ideologically predisposed to favoring deregulation.


The EPA, which has its own ideological stance on the issue, has produced studies indicating that costs of implementation will be approximately $9.6 billion annually — a fraction of NERA’s estimate — resulting in the creation of as many as 1.5 million jobs in five years, the equivalent of 267 Keystone pipelines, because of the growth of environmental technologies.

But even with the wide range of estimates on the regulations’ costs, the conservatives’ arguments against the EPA’s estimate on $37 billion to $96 billion in health benefits from the reduction of asthma and heart attacks, premature deaths and bronchitis have largely been invalid. Their estimate of the $6 million in benefits from the regulations consistently refers to the assumption, as even they note that only the impact of mercury regulations should be considered. In a last-ditch attempt to deceive the public on regulatory impacts of MACT, they stated that MACT regulations are redundant with present Clean Air Act regulations, but even they note that 39 percent of electricity generated from coal, or 739 terawatt hours annually, comes from insufficiently scrubbed plants — plants that would be covered by the new MACT rules.

It is difficult to see how this reasoning is rational in the slightest sense when one knows how air filters work, as they inherently filter the fine particles and toxic metals the EPA is targeting in addition to mercury, resulting in the other 99 percent of benefits that conservatives have decided to ignore. Ignoring side benefits of technology targeting specific goals in this case is comparable to ignoring all of the technology, from satellites to polymer glasses, that has arisen from space-age investments when debating the legacy of NASA.

Their reasoning behind ignoring the billions of dollars in health benefits from filtering particles in addition to mercury is just simply unfathomable, being even more comical than their accusations of the EPA’s alleged refusal to consider cost-benefit analysis when they had done just that. And even with the wide estimate range of benefits of $37 billion to $96 billion and high cost estimate of $17.6 billion, according to NERA, we are left with a minimum return on investment ratio of 2:1 and a maximum of 10:1.

How then, has this debate taken the national stage at all? The Supreme Court was not debating whether MACT had gone too far, but rather at which stage cost-benefit analysis should have been taken into account. The majority of the 5-4 ruling found that the EPA should have considered cost-benefit analysis before beginning to write the MACT regulations. Instead, the EPA decided to write such regulations only after significant health risks were found.

It is possible here that this procedural matter may be an actual nonissue. Many power plants have already set out to act upon the EPA’s regulations without incident, and future regulations may be adapted according to cost-benefit and health analysis on the issues. However, it is also possible that regulatory action may be more difficult to pursue as in-depth policy discussion will need to be initiated by not only significant health risks, but also cost-benefit analysis even before policies are developed.

Only time will be able to tell how this ruling plays out. However, the conservatives’ attempts to overplay the drama of the issue have left one thing certain on this ruling: their analysis on it has been a complete farce designed to entertain half-truths, fuel fear, and deceive their followers.


Doanvo is research assistant for the Global Initiative for Civil Society and Conflict.