Snyder bows out as Schuette fights EPA pollution rules

Chad Livengood
Detroit News Lansing Bureau

Lansing — Attorney General Bill Schuette continues to wage a court battle over the Environmental Protection Agency’s mercury pollution controls for coal-fired power plants despite compliance by Michigan’s biggest utility companies and Gov. Rick Snyder disassociating himself with Schuette’s lawsuit.

Schuette has waged a three-year legal battle with the EPA to block implementation of the Obama administration’s Mercury & Air Toxins Standards with limited success.

In mid-June, the U.S. Supreme Court declined to consider Schuette’s latest challenge to the EPA’s rules requiring power plants to reduce mercury emissions. Last Friday, Schuette filed a new legal action in the U.S. Court of Appeals in the District of Columbia challenging an amendment the EPA made to its rules in April.

Schuette said Wednesday he’s fighting the way President Barack Obama’s EPA went around Congress to push the emissions restrictions onto states.

“This is a constitutional issue about does the administration have follow the Constitution or do you do things and bypass the Constitution with the issuance of rules and regulations,” said Schuette, a former congressman. “That’s what this is about. I think the Constitution is important. I’m not going to apologize for it.”

Attorneys general from 14 other states, including Ohio and Wisconsin, signed onto Schuette’s Friday court filing.

Snyder took his name off the latest lawsuit, meaning Schuette is no longer suing on behalf of the State of Michigan, but just on behalf of the “People of Michigan.”

“We disassociated with that,” Snyder spokeswoman Anna Heaton said.

Consumers Energy and DTE Energy have already upgraded their coal-fired power plants in Michigan with pollution-scrubbing equipment to comply with the EPA and state-level mercury emissions rules, according to the utility companies.

DTE Energy spent more than $2 billion over the past 10 years upgrading the emissions controls on its five coal-fired power plants in southeast Michigan. The upgrades are expected to reduce mercury emissions 86 percent by 2018 compared with 2007 emissions levels, DTE spokesman Brian Corbett said.

Brian Wheeler, a spokesman for Consumers Energy, said the Jackson-based utility has already spent $2 billion upgrading five coal-fired power plants and shuttered seven other plants in April under a settlement agreement with the EPA.

“Why in the world is the Michigan attorney general leading the charge in endless litigation before the courts to stop the mercury and air toxins standards?” asked Howard Learner, executive director of the Environmental Law & Policy Center, a Midwest-based environmental legal advocacy group. “It’d be one thing if the utilities here were saying it’s going to cost us too much money.”

Schuette, a Midland Republican who is considered a likely contender for governor in 2018, denied he is sticking up for polluters.

“Absolutely not,” Schuette said. “It’s all about the Constitution. ... It’s about the separation of powers, the responsibilities of Congress and that ... rules and regulations cannot be done with an end run around Congress.”

Schuette won his initial challenge last year when the nation’s highest court ruled 5-4 that the EPA failed to consider the cost of its Clean Air Act regulation before imposing the rule.

But the high court has refused Schuette’s requests to completely overturn the regulations and instead forced the EPA to conduct a new cost-benefit analysis for the rules, Learner said.

Michigan and 20 other states in March asked the Supreme Court to step in again after the U.S. Court of Appeals for the D.C. Circuit left the emissions rule in place rather than vacating it, giving the EPA time to comply with the earlier ruling by determining the rule is “appropriate and necessary” despite the cost.

Snyder’s office didn’t think the continued litigation was worth the costs given the fact the utility companies are voluntarily complying with the state and federal laws, Heaton said.

“If an appeal were successful, it wouldn’t have any practical implication because these mercury requirements were already in place,” Heaton said. “We don’t see a value for Michigan residents going forward.”

Learner praised Snyder for dropping the lawsuit and suggested the Republican governor did so after “lessons learned in the lead contamination in the Flint water supply.”

The EPA’s mercury emissions rules are meant to limit release of the harmful neurotoxin, which gets into the atmosphere and pollutes lakes and rivers through rainfall. Mercury commonly shows up in the fatty tissues of fish in Great Lakes states, making consumption of that fish unsafe for humans.

“Especially in light of all the lessons learned from the Flint tragedy, the state of Michigan and the attorney general should not be leading the charge to allow more mercury in the Great Lakes and the inland lakes and rivers,” Learner said.

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Twitter: @ChadLivengood

Staff Writer Jonathan Oosting contributed.