By Adam Liptak
Last week, the Supreme Court denied a request from an electric utility in Kentucky to stop the Environmental Protection Agency from addressing the health dangers posed by coal ash, a hazardous material produced when coal is burned for electricity.
The court’s concise order did not provide any explanations, which is customary in emergency cases. There were no dissenting opinions recorded.
The East Kentucky Power Cooperative contest the EPA’s strategy in a federal appeals court in Washington, claiming the agency overstepped its legal authority by mandating oversight and cleanup at sites that had ceased coal ash production. The utility also requested that the appeals court suspend the agency’s plan during its review, a plea the court rejected.
Subsequently, the utility sought the Supreme Court’s involvement, arguing that the relevant statute applied exclusively to locations where solid waste “is disposed of.” According to them, the present tense indicated that inactive locations where coal ash had been removed were excluded.
The agency’s attorneys countered that the utility’s claim was founded on an erroneous assumption.
“The evidence presented to the EPA demonstrated that legacy impoundments leak into nearby soil and groundwater,” the agency’s brief stated, “therefore, even if coal ash has been taken out of an impoundment, coal-ash leachate — which itself qualifies as ‘solid waste’ as defined by” the applicable law — “would typically be expected to persist at that site.”
The stakeholders disagreed over the financial implications of the plan. The utility estimated that monitoring at one inactive site would cost upwards of $16 million, whereas the EPA pegged the expense at $229,000.
In their own submissions, various environmental organizations argued there was no immediate need to resolve the issue.
“The earliest compliance deadline for the cooperative is significantly far away — well into the year 2028,” the brief noted. “And that deadline only obligates it to meet minimal groundwater monitoring standards.”
On the opposite end of the spectrum, the groups warned of serious hazards.
“Coal ash harbors considerable levels of toxic chemicals like arsenic, boron, lead, selenium, and mercury, each posing severe threats to human health and the environment,” their brief outlined. “Among other risks, exposure elevates the likelihood of skin, liver, bladder, and lung cancers, as well as potential neurological, psychiatric, and cardiovascular damage.”
The court’s ruling against the utility’s appeal aligns with recent decisions regarding emergency applications in environmental issues, which refrained from intervening in cases before they underwent complete litigation in appeals courts. For example, throughout October, the justices declined to impede EPA efforts aimed at capping carbon emissions from power plants and curbing emissions of two pollutants: mercury, a dangerous neurotoxin, and methane, a powerful greenhouse gas.
