First (Only?) Environmental Case of the Supreme Court’s Term is a Big One

power plantThis coal-fired power plant is excited to receive its 15 minutes of fame when the Supreme Court rules on a complex environmental case later this term. (Getty Images)

The consolidated cases of Michigan v. Environmental Protection Agency, Utility Air Regulatory Group v. Environmental Protection Agency and National Mining Association v. Environmental Protection Agency challenge a 2012 Environmental Protection Agency (EPA) regulation intended to limit mercury and other emissions from mostly coal-fired power plants.

Before regulating emissions from electric utilities, the Clean Air Act (CAA) requires the EPA Administrator to find that regulation is “appropriate and necessary” based on a public health hazards study. The simple legal question in this complicated case is whether the EPA unreasonably refused to consider costs in making its determination that regulation was “appropriate.”

In 1990 Congress required the EPA to identify stationary sources for 189 hazardous air pollutants and adopt maximum achievable control technology standards (MACT) for limiting their emissions. But the CAA regulates emissions from electric utilities differently than from other stationary sources. Before the EPA may regulate electric utilities under the MACT program, it must perform a health hazards study and determine whether regulation of them is appropriate and necessary.

In 2000, the EPA determined it would regulate mercury and other emissions from electric utilities, but it reversed course in 2005. Then in 2012, the agency issued the final rule challenged in this case which concluded that regulating electric utilities was appropriate and necessary. The EPA “rejected the 2005 interpretation that authorizes the Agency to consider other factors (e.g., cost).”

The D.C. Circuit agreed with the EPA that it was not required to consider costs. “Appropriate” isn’t defined in the relevant section of the CAA and dictionary definitions of the term don’t mention costs.  Throughout the CAA “Congress mentioned costs explicitly where it intended the EPA to consider them.”

A dissenting judge pointed that the cost of regulation in this case is nearly $10 billion dollars annually and opined that the cost of complying will “likely knock a bunch of coal-fired electric utilities out of business and require enormous expenditures by other coal- and oil-fired electric utilities.”

States are involved in this case on both sides. During its last term, the Supreme Court ruled on two significant Clean Air Act cases: EPA v. EME Homer City Generation, involving the CAA’s Good Neighbor Provision, and Utility Air Regulatory Group v. EPA, involving greenhouse gases and stationary sources.

Lisa Sorenen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

NLC’s Delegation to Europe: Day 2 [Malmö, Sweden]

On the second day of the NLC delegation to Europe we head to Malmö, Sweden, the third largest city in Sweden, and along with Stockholm considered one of the leading cities in Sweden on issues of sustainability.

Our group was welcomed to Malmö with a lunch meeting hosted by the National Association of Swedish Ecomunicipalities (SEKOM), an organization of over 80 municipalities in Sweden committed to advancing sustainability practices. At the meeting U.S. and Swedish local leaders discussed efforts that they are making in their communities, and trends they are seeing as being important to advancing sustainability. Among the topics discussed by Swedish leaders were the challenges of balancing an increase in energy consumption from the rise of ever-accessible IT such as mobile phones with the need to continually incorporate technologically-based solutions into sustainability plans.

Following this meeting the group headed to the Western Harbor, a former shipyard that has been redeveloped and transformed over the past decade into a mixed-use community incorporating innovative sustainability features throughout the newly-built environment. Design features include retractable solar panel canopies that serve the dual purpose of providing shade and reducing cooling needs; stationary vacuum systems for waste collection; and collection of stormwater through greenroofs and permeable surfaces. At the conclusion of the tour delegates met with Environment Director for the City of Malmo, Ms. Katarina Pelin, at the famous “turning torso” building to learn more about the evolution of sustainability efforts throughout Malmo. It was encouraging to learn that even just 10 years ago, the concept of sustainability was not widely embraced but that today it is widely accepted and expected by community members and private developers.

The delegates concluded their day as guest presenters at Malmo University where they presented to students and faculty members about sustainability initiatives in the U.S. The students were particularly interested in topics of U.S. land use policies; adoption of alternative transportation; and how cities were developing partnerships – such as those with universities and surrounding cities – to achieve their goals.

Tomorrow the delegation will depart Sweden and begin their day in Hamburg , Germany where they will visit the waterfront development area of HafenCity and visit with the U.S. Consul General to Hamburg.

Continue to read about our daily activities here at and follow us on twitter @NLCgreencities !

NLC Delegation Carries Sustainability Message to Europe

A high-level NLC delegation of local officials has begun to arrive at the inaugural European Green Capital Conference, with the intent of sharing the successes and challenges of U.S. work on sustainability, while gathering best practices from across Europe. Stockholm, Sweden, is serving as the host of this inaugural sustainability conference, having been officially designated by the European Union as its first “European Green Capital.” The meeting’s purpose is to present examples of how European cities are working to meet the demands of growing cities while maintaining sustainable economic development and decreasing the negative impact on the environment.

NLC received a grant from the U.S. State Department to send a delegation of U.S. mayors and other top local officials, wanting to demonstrate that the U.S. is active on these issues, while highlighting that it’s the local governments in the U.S. who are taking the lead. NLC’s sustainability program in the Center for Research and Innovation has been working closely with the staff of the U.S. Embassy in Stockholm, which originated the grant.

Eleven officials comprise the U.S. contingent, which has already generated considerable buzz at the conference and in the press. Six officials are attending on behalf of NLC:
• NLC President Ron Loveridge, mayor of Riverside, Calif.;
• NLC EENR committee chair Henrietta Davis, vice mayor of Cambridge, Mass.;
• Mayor Sam Adams of Portland, Ore.;
• Councilmember Matt Appelbaum of Boulder, Colo.;
• Mayor John Marks of Tallahassee, Fla.; and
• Mayor R.T. Rybak of Minneapolis.

NLC is partnering with the Institute for Eco-Municipality Education and Assistance, which identified representatives of four U.S. towns which have formally adopted the eco-municipality program which originated in Sweden:
• Mayor Dave Cieslewicz of Madison, Wisc.;
• Mayor Larry MacDonald of Bayfield, Wisc.;
• Councilor Eric Spear of Portsmouth, N.H.; and
• Township Manager Rich Krawczun of Lawrence, N.J.

Additionally, the group is joined by the President of the U.S. Conference of Mayors:
• Mayor Elizabeth Kautz of Burnsville, Minn.

The group will be active participants throughout the conference, highlighted by a Thursday plenary session dedicated to American “green success stories.” Following the close of the conference on Friday, the delegation will also meet with several dozen officials from Swedish cities at a session hosted by the embassy.

Stay tuned for updates from Stockholm. If you wish to follow the conference live, much of the proceedings will be streamed at the conference website: