Indiana challenges to pollution rules go to court

WASHINGTON – Challenges by Indiana and other states to major air pollution rules will hit two key courtrooms Tuesday.

The Supreme Court will consider how the federal government can hold states, including Indiana, responsible for reducing pollutants from power plants that contribute to harmful levels of smog and soot in downwind states.

Indiana is among the states and power companies challenging the Environmental Protection Agency’s proposed solution.

Indiana is also one of the states contesting new national standards to reduce mercury and other toxic pollutants from coal and oil-burning power plants. That case comes before a U.S. Court of Appeals D.C. Circuit panel on Tuesday.

“It’s a very important day for clean air in America,” said Vickie Patton, general counsel of the Environmental Defense Fund, which is among the groups supporting the EPA’s positions.

Proponents say the rules would deliver more in health and other benefits than they would cost states to implement.

Reducing smog and soot from cross-state pollution would prevent heart attacks, bronchitis and asthma attacks, the government says. EPA estimates the rule also would prevent up to 1,400 premature deaths in Indiana each year and provide health benefits worth $4.5 billion to $11 billion per year.

“Air pollution has a profound impact on all aspect of kids’ health,” said Dr. Jerome Paulson, chairman of the American Academy of Pediatrics Council on Environmental Health.

Mercury emissions, to which people are primarily exposed by eating contaminated fish, can cause neurological defects and other problems in very low concentrations. Indiana has issued warnings throughout the state about the dangers of eating fish caught in Indiana.

The EPA has estimated that the cost of meeting the new toxic pollution rules would raise the average consumer’s monthly electricity bill by $3 or $4. The effect of the transport rule on utility bills would vary by state, but the EPA said the changes should be “well within the range of normal price fluctuations.”

The Indiana Department of Environmental Management declined to comment on what it would take for Indiana to comply with the regulations if they’re upheld, saying through a spokesman that the state’s legal filings speak for themselves.

When the EPA was writing the rules on toxic pollutants, IDEM disputed the benefits. The agency said the amount of mercury found in the state’s fishes hasn’t changed much despite declines in mercury emissions.

When a federal appeals court panel rejected the EPA’s cross-state pollution rule last year, then-Gov. Mitch Daniels called it “great news for Hoosier ratepayers and job seekers.”

“This ruling means that our affordable energy costs can remain one of our best arguments in attracting new businesses,” Daniels said.

Indiana relies on coal-fired power plants for most of its energy, including that used by power-intensive manufacturing.

Indiana, however, is both a contributor to other states’ pollution levels as well as a recipient of cross-state pollution.

“Almost every state in the entire eastern United States lives in this toxic soup, this mass of smog,” said William Becker, executive director of the National Association of Clean Air Agencies, which has not taken a position on the Supreme Court case. “And it is almost impossible, without a regional solution, to abate the adverse impacts of this transported air pollution.”

The EPA’s solution — which it devised after a federal appeals court rejected in 2008 the approach proposed by the George W. Bush administration — was to determine which states are significant contributors to cross-state pollution and assign reductions based on where the biggest changes could be made for the least cost.

That actually benefits Indiana, according to the Environmental Defense Fund. It calculated that Indiana would have to make much bigger reductions if the EPA could only consider Indiana’s maximum downwind contribution to another state.

A federal appeals panel, however, rejected the cost-benefit approach, saying EPA can’t force a state to cut back emissions more than what it’s sending to other states.

The appeals panel also agreed with the argument by Indiana and other challenging states that the EPA hadn’t first given them a chance to reduce cross-state emissions before imposing a federal solution.

But states that sided with the EPA — including Illinois and several eastern states — said states could have addressed the issue if they’d wanted to. The appeals court’s rejection of the federal solution allows upwind states to postpone the costs of air-pollution controls for years while downwind states continue to suffer the consequences, they argue.

The multiple states and business interests — including the Indiana Chamber of Commerce and the Indiana Coal Council — challenging the new rules limiting toxic pollution from coal and oil-fired power plants argue, among other complaints, that the EPA did not prove that mercury and other pollutants pose public health hazards.

The EPA replied that there’s an extensive body of evidence that power plant emissions pose hazards to public health and the environment that won’t be addressed without the new restrictions.

Indiana ranked fourth in 2010 in the amount of toxic emissions from power plants, according to the Natural Resources Defense Council. Those utility emissions accounted for 65 percent of the state’s toxic air pollution.

Contact Maureen Groppe at mgroppe@gannett.com or @mgroppe on Twitter.