Tuesday, June 30, 2015

Supreme Court Overturns EPA Limits on Power Plants

On June 29, the United States Supreme Court nixed the United States Environmental Protection Agency’s 2012 Mercury and Air Toxics Standard, limiting emissions of mercury and other pollutants from power plants. The challengers argued that the $9.6 billion cost of complying with the standard outweighed the benefit of its application, and that EPA impermissibly failed to consider cost in deciding whether to regulate toxic emissions from power plants.

The Supreme Court held that EPA abused its discretion by ignoring cost, even under the deferential standard established in Chevron USA Inc. v. Natural Resources Defense Council, Inc. The Court held that in directing EPA to regulate power plants if it “finds such regulation is appropriate and necessary,” Section 112 of the Clean Air Act requires “at least some attention to cost.” Writing for the majority, Justice Scalia said, “One would not say that it is even rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.”

EPA argued that it is not required to consider cost in the initial decision regarding whether to regulate power plants because it can consider cost when deciding on the extent of regulation. The Court rejected this argument, finding that “[c]ost may become relevant again at a later stage of the regulatory process, but that possibility does not establish its irrelevance at this stage.” The majority found that cost must be considered, but went on to say that it is within the agency’s discretion to consider how to evaluate costs, and even what constitutes a “cost.” The Court stated that cost “includes more than the expense of complying with regulations; any disadvantage could be termed a cost.”

--Kathryn Oehlschlager

For more information, contact Kathryn Oehlschlager at klo@bcltlaw.com or (415) 228-5458.

Monday, June 29, 2015

Irrigation District Sues, Says State Board Lacks Jurisdiction to Curtail Senior Water Rights

On June 26, the Byron-Bethany Irrigation District (BBID) filed a petition for writ of mandate in Contra Costa County Superior Court requesting that the Court set aside the State Water Resources Control Board’s June 12, 2015 “notice of curtailment,” requiring hundreds of senior water rights-holders to cease diverting water from the Sacramento-San Joaquin Delta.

The BBID website states that BBID is “ a multi-county special district serving parts of Alameda, Contra Costa, and San Joaquin Counties. The District serves a total area of 47 miles and 30,000 acres.” BBID’s service area includes the community of Mountain House, which relies exclusively on BBID for its water supply.

The Petition alleges that the State Board lacks jurisdiction to curtail pre-1914 water rights, that the curtailment notice violates the California Constitution with regard to beneficial use of water, and that BBID was denied constitutional due process. 

“Enough is enough,” said BBID Board President Russell Kagehiro in the District’s press release. He went on to refer to the State Board’s action as “irresponsible and unnecessary.”

Meanwhile, also on June 26, the State Board issued a second curtailment notice to senior rights-holders, including the City and County of San Francisco.

--Kathryn Oehlschlager

For more information, contact Kathryn Oehlschlager at klo@bcltlaw.com or (415) 228-5458.