OVERNIGHT REGULATION: High court divided on EPA air rule

Welcome to OVERNIGHT REGULATION, your daily rundown of news from Capitol Hill and beyond. It's Wednesday evening here in Washington and we're tired after a log day covering breaking news and U.S. Supreme Court cases. It didn't help that one of us stayed up too late to finish HBO's documentary series "The Jinx: The Life and Deaths of Robert Durst." It's too good to describe. But in other news:



The Supreme Court appeared split Wednesday over a challenge to the Environmental Protection Agency's first-ever limits on mercury, arsenic and acid gases emitted by power plants, slated to take effect next month for some plants.

The court is tasked with determining whether EPA unreasonably refused to consider costs in deciding whether it was appropriate to regulate hazardous air pollutants emitted by electric power plants under the Clean Air Act.


Though some on the court – Justices Kennedy and Roberts specifically – seemed skeptical of EPA's rule, agency supporters believe the regulations will ultimately be upheld.

"The initial decision to regulate is based on public health," said Sean Donahue, counsel for the Environmental Defense Fund. "We think EPA got it right and we think the court will decide that as well."

The D.C. Circuit Court of Appeals sided with EPA, but twenty-three states and more than two-dozen industry and labor groups argue that the agency unreasonably refused to consider costs before imposing the mercury regulations on coal- and oil-fired electricity generating units.

Chief Justice Roberts seemed concerned about the reported compliance costs, calling the benefit "disproportionate" and saying it "raises a red flag."

The EPA estimates the rule would cost $9.6 billion and produce between $37 billion and $90 billion in benefits, preventing up to 11,000 premature deaths annually.

But challengers say the benefits of controlling the utility emissions of mercury, which ends up in fish that's eaten, only amount to $4 million to $6 million annually.

Other justices dismissed those concerns. Justice Sonia Sotomayor acknowledged that the agency did not consider costs when listing electric generating units as a source of hazardous air pollution, but she said the rulemaking process does not permit the agency to consider the cost of technology in creating subcategories for those units.

Aaron Lindstrom, the attorney representing Michigan – one of the challenging states – said EPA made those categorizations without considering cost.

"All right. Then how would you do that without considering cost?" Justice Stephen Breyer asked.  

"I don't know how they did it, but they've said throughout that we're not considering costs," Lindstrom said.



Labor Secretary Tom Perez will testify Thursday at a Senate hearing for his agency's 2016 budget. http://1.usa.gov/1EV6LXy

The Senate Veterans' Affairs Committee will hold a hearing Thursday on the prescription policies, practices and procedures for opiods, strong painkillers, at VA facilities. http://1.usa.gov/19R9DL7

The Senate Judiciary Committee will mark up legislation Thursday that would provide police departments with grants to purchase bulletproof vests. http://1.usa.gov/1y8Nwou



The Obama administration will publish 126 new regulations, proposed rules, notices and other administrative actions in Thursday's edition of the Federal Register

Here's what to look for:

--The Department of Energy (DOE) will consider new energy conservation standards for pool heaters and direct heating equipment.

The Energy Department's Office of Energy Efficiency and Renewable Energy will issue a request for information on these heaters to help it determine whether to move forward with new regulations.

The public has 30 days to comment. http://bit.ly/1HHbRub

--The Nuclear Regulatory Commission (NRC) will propose new regulations for low-level radioactive waste disposal facilities.

These radioactive waste disposal facilities would be subject to new site-specific technical analyses, acceptance criteria based on the results of those analysis, and implementation standards, among other things.

The public has 120 days to comment on the proposed rule. http://bit.ly/1EGrCv9

--The Department of Defense (DOD) will issue new acquisition regulations for military construction contracts.

The DOD's new military construction standards require the Defense Acquisition Regulations System to give preference to American manufacturers over those in foreign countries, particularly manufacturers near the Arabian Gulf.

The rule goes into effect immediately. http://bit.ly/1N9sU8o

--The Federal Motor Carrier Safety Administration (FMCSA) will loosen the accident reporting requirements for certain highway safety vehicles.

Attenuator trucks struck by motorists while they are inside a construction work zone will not be required to report the incident as an accident under the FMCSA's new guidance.

"Attenuator trucks are highway safety vehicles equipped with an impact attenuating crash cushion intended to reduce the risks of injuries and fatalities resulting from crashes in construction work zones," the agency writes. 

The guidance goes into effect in 60 days. http://bit.ly/19QWpxX



Air pollution: The Supreme Court is considering whether to strike down a contentious air pollution rule from the Environmental Protection Agency. http://bit.ly/1CYD3DL

Pregnancy: The Supreme Court is ordering a lower court to reconsider whether the United Parcel Service (UPS) discriminated against a pregnant worker. http://bit.ly/1IwbqAz

Coal ash: House Republicans are pushing legislation in response to the Environmental Protection Agency's coal ash rule. http://bit.ly/1FGRywk

Oil trains: Senate Democrats are pushing legislation that would strengthen the safety requirements for trains carrying oil. http://bit.ly/19lkWtR

Trains: But Senate Republicans are looking to delay another set of train safety requirements. http://bit.ly/1Brlhlp

Twitter: Federal regulators may take a look at possible unfair practices by Twitter. http://bit.ly/19lVLaq



4/16/15: The day EPA's Mercury and Air Toxic Standards take effect for some power plants.

$9.6 billion: How much the rule is expected to cost annually in compliance.

$37 to $90 billion: What EPA estimates the benefits of its rule will be annually.

$4 to $6 million: What challengers to EPA's rule say the benefits of controlling mercury emissions will actually be.



"We want to put our faith in God, not hard hats," --Abe Byler, an Amish employee whose religion prohibits him from wearing a hard hat at mining sites, which comes in conflict with federal regulations. Look for the story in tomorrow's paper and on TheHill.com.


We’ll work to stay on top of these and other stories throughout the week, so check The Hill’s Regulation page (http://thehill.com/regulation) early and often for the latest. And send any comments, complaints or regulatory news tips our way, tdevaney@thehill.com or lwheeler@thehill.com. And follow us at @timdevaney and@wheelerlydia.

Click here to sign up for the newsletter: http://bit.ly/1pc6tau