UPDATES & ANALYSIS

Iowa, the EPA, and the Supreme Court

by Rox Laird | March 2, 2016

Iowa and 19 other states have asked the U.S. Supreme Court to order the Environmental Protection Agency to halt enforcement of a rule limiting mercury emissions from coal-fired power plants while the case is considered in federal courts.

The EPA issued regulations in 2012 requiring power companies to reduce emissions of mercury and other pollutants blamed for public health threats, particularly among children whose mothers were exposed to high mercury levels during pregnancy. The regulations have been attacked by states dependent on coal plants – like Iowa – that argue the cost of compliance far outweighs the benefits.

Last year the Supreme Court in a 5-4 ruling said the EPA should have calculated the cost of the mercury regulation before implementing the rule, and sent the case back down to a lower federal appeals court for further proceedings. That Court subsequently held that the EPA could continue to enforce the regulation while it completes work on estimates of the power companies’ compliance costs.

The 20 states are appealing that decision. They are now asking the Supreme Court to order the EPA to halt enforcement of the rule until the cost estimates are complete. The court gave federal environmental regulators until 4 p.m. today to respond to the states’ petition.

Iowa has been among the states challenging the rule before the Supreme Court since the beginning. (The legal briefs have been signed by legal counsel to Iowa Gov. Terry Branstad “on behalf of the people of Iowa,” but not by Iowa Attorney General Tom Miller. The attorneys general for the other participating states signed onto the case).

This is another example of a high-profile case thrown into doubt by the death of Justice Antonin Scalia. The late justice wrote last June’s decision, Michigan v. EPA, and was joined by four other conservative justices. A 4-4 tie would uphold the lower-court ruling, unless one or more justices from the Court’s liberal wing changes his or her position.

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Another appeal with implications for Iowa hit a brick wall Monday: The U.S. Supreme Court denied a petition from the American Farm Bureau Federation to hear its case that the EPA exceeded its authority in regulating nitrogen, phosphorous, and sediment polluting the Chesapeake Bay.

This appeal was no doubt closely watched by both sides of the civil suit in federal court brought by the Des Moines Water Works against drainage districts in three Iowa counties. Agriculture, as a “non-point” source of nitrate and other chemicals, is exempt from mandates under the Clean Water Act. But the Water Works wants the U.S. District Court for the Northern District of Iowa to rule that farm drainage tiles are actually a “point source” of pollution and thus subject to EPA regulation.

So even though the Supreme Court decided not to hear the Chesapeake Bay appeal, we may see some of these same arguments in the Iowa lawsuit.