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EPA at the Forefront in Two D.C. Cir. Cases

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By Casey C. Sullivan, Esq. on March 31, 2015 1:15 PM

When it comes to federal regulation, the D.C. Circuit is arguably the most important court in the nation. Not only does it see more cases challenging government rulemaking, it throws out those rules regularly -- at a rate significantly higher than any other circuit.

The EPA is no stranger to the less-than-deferential D.C. Circuit, with two recent EPA cases making the news over the past weeks. Last Wednesday, SCOTUS heard oral arguments over the EPA's mercury and air toxics rules, which the D.C. Circuit upheld and several states say improperly ignore costs. The agency was also recently instructed by the circuit to revisit its dust corrosivity standards after an EPA scientist sued, saying that the standards were too lax and failed to protect 9/11 first responders.

Mercury Regulations Before the High Court

The Supreme Court heard arguments regarding the EPA's mercury emissions regulations last Wednesday. The agency had adopted new limits on mercury emissions from oil and gas power plants -- which emit enough mercury to 11,000 premature deaths a year -- in 2012.

Texas and 20 other states, as well as industry groups, sued, arguing that the EPA failed to make necessary cost-benefit analysis under the Clean Air Act. The regulations are expected to cost around $10 billion.

The D.C. Circuit upheld the regulations, finding that the CAA only requires such analysis when the statute explicitly calls for it and that the EPA's regulation of the deadly neurotoxin / household thermometer ingredient was reasonable. The Supremes seem much more split, however, with Justice Scalia describing the regulations as a "classic arbitrary and capricious agency action for an agency to command something that is outrageously expensive," The Washington Post reports.

If You Think Mercury is Bad, Wait 'Til You Hear About Dust

It's not all fancy quicksilver for the EPA, however. The D.C. Circuit also recently ordered the agency to reconsider its regulation of a much more common element: dust. Cate Jenkins, an EPA scientist, and the nonprofit Public Employees for Environmental Responsibility had sued the agency over its dust limits. Jenkins alleges that EPA's current corrosivity standards underestimate the way that dust can degrade material and that the lax limits failed to protect first responders after the September 11th, 2001, terrorist attacks. The EPA has a year from today to decide whether it will issue new standards.

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