The Supreme Court on Wednesday rejected a request from an electric utility in Kentucky to block an Environmental Protection Agency effort to address the health risks presented by coal ash, a toxic substance created by burning coal to produce electricity.
The court’s brief order gave no reasons, which is typical when it acts on emergency applications. There were no noted dissents.
The utility, East Kentucky Power Cooperative, challenged the E.P.A.’s plan in a federal appeals court in Washington, saying the agency had exceeded its statutory authority by requiring monitoring and remediation at facilities that were no longer producing coal ash. The utility also asked the appeals court to block the plan while it considered the matter, a request the court denied.
The utility then asked the Supreme Court to intervene, saying the statute at issue applied only to sites where solid waste “is disposed of.” The present tense, it said, excluded inactive sites where it said coal ash had been removed.
Lawyers for the agency responded that the utility’s argument was based on a false premise.
“The evidence before E.P.A. established that legacy impoundments leak into the surrounding soil and groundwater,” the agency’s brief said, “so that even where coal ash has been removed from an impoundment, coal-ash leachate — which itself constitutes ‘solid waste’ within the meaning of” the law at issue — “would normally be expected to remain at the site.”
The parties differed about the costs the plan would impose. The utility said monitoring at one inactive site would cost more than $16 million. The E.P.A. put the number at $229,000.
In their own brief, several environmental groups said there was no rush to decide the matter.
“The earliest compliance deadline the cooperative faces is far down the line — well into 2028,” the brief said. “And that deadline requires it to comply only with modest groundwater monitoring requirements.”
On the other side of the balance, the groups said, were grave risks.
“Coal ash contains significant concentrations of chemicals like arsenic, boron, lead, selenium and mercury, each of which poses serious dangers to human health and the environment,” their brief said. “Among other things, exposure increases rates of skin, liver, bladder and lung cancer as well as risks of neurological, psychiatric and cardiovascular harm.”
The court’s order denying the utility’s request was of a piece with recent rulings on emergency applications on environmental matters that declined to intervene in cases before they were fully litigated before appeals courts. In a series of orders in October, for instance, the justices refused to block E.P.A. initiatives to limit carbon emissions from power plants and to reduce emissions of two pollutants: mercury, a hazardous neurotoxin, and methane, a potent greenhouse gas.
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