Attorney General Becerra Files Motion to Intervene in Lawsuit to Defend Critical Mercury and Air Toxics Standards

SACRAMENTO – California Attorney General Xavier Becerra today, as part of a multistate coalition, filed a motion to intervene in a lawsuit to defend critical mercury pollution limits against an industry backed challenge. The Mercury and Air Toxics Standards limit emissions of mercury and other hazardous air pollutants from coal- and oil-fired power plants. Each year, these standards prevent tens of thousands of premature deaths and generate more than $1 billion in economic activity.

“As evidence grows that communities exposed to air pollution are at increased risk from coronavirus, limiting particulate matter pollution from coal-fired power plants could not be more critical,” said Attorney General Becerra. “While the Trump Administration has made little effort to disguise its desire to prop up dirty power, California won’t sit idly by.”

The Clean Air Act requires the Environmental Protection Agency (EPA) to set pollution control standards for hazardous air pollutant emissions from power plants, if doing so is “appropriate and necessary.” Fossil fuel-fired power plants are the Nation’s largest source of hazardous air pollution, including acid gases, mercury, and other toxic metals such as arsenic, chromium, and nickel. Those pollutants pose severe risks to human health and are particularly harmful to certain highly exposed and sensitive populations, including children and subsistence fishing communities. In 2016, the EPA found that the standards were “appropriate and necessary” after a detailed determination that the massive benefits dwarfed the estimated costs. 

On May 22, 2020, the EPA reversed this finding and instead concluded that the regulation of these power plants is not “appropriate and necessary.” The EPA reached this new conclusion by relying on outdated cost estimates that have since proven too high, while largely ignoring the tremendous public health and environmental benefits of the existing standards. The same day, Westmoreland Mining Holdings filed a lawsuit challenging the EPA’s revised finding that leaves the existing standards in effect. The case is currently pending in the D.C. Circuit. Given the EPA’s new stance on the appropriateness of the Mercury and Air Toxics Standards, the coalition of attorneys general and the California Air Resources Board believe that the EPA cannot be expected to faithfully defend the standards in court and seek to intervene in the lawsuit.

Attorney General Becerra, as part of this multistate coalition, previously filed a comment letter pushing back against the EPA’s proposed determination that existing regulations limiting mercury emissions from coal- and oil-fired power plants are not appropriate. The comment letter argued, among other things, that the EPA cannot ignore the indirect benefits of these standards, which include reducing harmful particulate matter emissions. Attorney General Becerra is likewise fighting the EPA’s efforts to justify suppressing science that demonstrates the benefits of reducing air pollution.

In filing the motion to intervene, Attorney General Becerra joins the attorneys general of Massachusetts, Connecticut, Delaware, Illinois, Maine, Maryland, Michigan, Minnesota, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, and Vermont, as well as the City of New York.

A copy of the motion can be found here.