On April 15, 2016, the Environmental Protection Agency (EPA) issued its supplemental finding that it is appropriate and necessary to set standards for emissions of air toxics, including mercury, from coal- and oil-fired power plants, clearing the final administrative hurdle for the implementation of its Mercury and Air Toxics Standards (MATS) Rule. Kanji & Katzen drafted comments in support of the MATS Rule and EPA’s supplemental finding on behalf of a number of tribes and tribal organizations, including the National Congress of American Indians, Columbia River Inter-Tribal Fish Commission, Great Lakes Indian Fish and Wildlife Commission, Grand Traverse Band of Ottawa and Chippewa Indians, Fond du Lac Band of Lake Superior Chippewa, Little Traverse Bay Bands of Odawa Indians, and the Tribal Law and Government Center. The preamble to EPA’s finding references those comments several times and strongly affirms the Tribes’ and tribal organizations’ central argument that the agency’s cost analysis must take into account harms incapable of monetization, including the negative effects of mercury pollution on tribal health, culture, and subsistence. EPA’s final supplemental finding can be found here: https://www3.epa.gov/mats/pdfs/20160414_mats_ff_fr.pdf.
EPA completed the supplemental finding in response to the Supreme Court’s narrow June 2015 holding, in Michigan v. EPA, that the agency must consider cost in its determination that it is “appropriate” to regulate hazardous pollutant emissions from power plants under section 112 of the Clean Air Act. It remains to be seen whether opponents of the MATS Rule will once again try to thwart EPA’s attempts to limit the level of mercury and other air toxic emissions from power plants through further litigation. In the event that litigation does ensue, the tribal comments and EPA’s attention to them in its supplemental finding will be of significant assistance in ensuring that the courts take those interests into account in assessing the validity of the Rule.