The U.S. Environmental Protection Agency won a victory in the D.C. Court of Appeals on its Mercury and Air Toxics Standards (MATS), a major clean air regulation that had been dealt a setback by the U.S. Supreme Court earlier this year.

MATS is one of several EPA air regulations aimed largely at coal-fired power plants; it’s distinct from the agency’s Clean Power Plan, which seeks to limit states’ carbon dioxide emissions to combat global warming. But the big picture effect of MATS on utilities is similar: To bring the economic cost of burning coal more in line with its social and environmental toll, whether in mercury-polluted waters or increased greenhouse gases.


Arkansas was one of several states that fought the higher standards on mercury, and state Attorney General Leslie Rutledge applauded the U.S. Supreme Court’s ruling against the regulation back in June. But, the high court didn’t throw out MATS entirely. It just said the EPA had to take into account the cost of compliance to utilities when it crafted the regulation, then sent the case back to the D.C. Circuit. The lower court today said the EPA can continue to enforce the standards while it addresses the problems identified by the Supremes.

Arkansas Sierra Club director Glen Hooks, who has been sparring with Rutledge over multiple clean air regulations, issued a statement:


“Today’s decision is a victory for both common sense and for public health. Opponents of clean air protections were asking the court to switch off these protections, most of which have already been installed, while EPA completed an assessment of their costs. The court wisely ruled today that it makes no sense to switch off the clean air protections. Eliminating the standards would have exposed children to toxic pollution that can cause life-long neurological damage.

“Today, Attorney General Leslie Rutledge supported yet another losing attempt to weaken clean air protections in Arkansas and beyond. How many times will our Attorney General waste taxpayer resources to stand firmly on the wrong side of both the law and common sense? The Sierra Club urges Rutledge to stop fighting against clean air and to instead stand with us as we work to improve our state’s health, environment, and economy.”

On a political level, though, the EPA’s victory on mercury is probably outweighed by a slapdown offered yesterday by a congressional watchdog agency concerning another regulation, the Waters of the United States rule. Rutledge is fighting this rule as well, unsurprisingly.

The Government Accountability Office yesterday concluded that the EPA’s social media campaign used to promote the clean water rule amounted to a form of lobbying, calling it “covert propaganda.” The New York Times explains:


But in the E.P.A.’s counterattack, the G.A.O. says agency officials engaged in “covert propaganda” on behalf of Mr. Obama’s water policy by concealing the fact that its social messages were coming from the E.P.A. The agency essentially became lobbyists for its cause by including links that directed people to advocacy organizations.

Federal agencies are allowed to promote their own policies, but they are not allowed to engage in propaganda, which means covert activity intended to influence the American public. They also are not allowed to use federal resources to conduct so-called grass-roots lobbying — urging the American public to contact Congress to take a certain kind of action on pending legislation.

For some time, the Waters of the United States rule — often referred to by the unfortunate acronym WOTUS — has been a target of conservatives, who say it will vastly increase federal regulation of private land. The GAO’s complaint about the EPA’s social media behavior doesn’t say anything about the merits of the rule, but it still comes as an embarrassment to the environmental agency and gives ammunition to congressional Republicans looking to block the WOTUS rule.