How much mercury should coal plants be allowed to emit? There’s been a years-long fight in Washington, D.C., over that very question—and who wins it may ultimately depend on whether Brett Kavanaugh is confirmed to the Supreme Court.



Mercury is a potent neurotoxin, and particularly dangerous to the brains of developing fetuses and young children. Thus, say Democrats, environmentalists, and public health professionals, its release into the atmosphere should be severely restricted. Back in 2011, the Obama administration attempted to do just that, proposing the first-ever federal limits on toxic heavy metal pollution from coal plants.

But Republicans, the coal industry, and President Donald Trump, citing the costs of regulatory compliance, argue for looser regulations. To that end, the Environmental Protection Agency soon will unveil a proposal to “dramatically weaken” and potentially repeal Obama’s Mercury and Air Toxics Standard (MATS), according to The New York Times.



A few things inevitably will happen when the Trump administration officially unveils its proposal to weaken MATS. Environmental groups will file a lawsuit arguing that the move violates the Clean Air Act. The lawsuit will be heard by the D.C. Circuit Court of Appeals—where Kavanaugh currently serves. Finally, that court’s decision will be appealed to the Supreme Court. If Kavanaugh is sitting on the Supreme Court come that time, it’s almost certain Trump’s proposal would be upheld because the justification for it echoes a dissenting opinion Kavanaugh wrote four years ago.

Trump’s new proposal, according to the Times, will do one very important thing: “repeal a 2011 finding made by the EPA that when the federal government regulates toxic pollution such as mercury from coal-fired power plants, it must also, when considering the cost to industry of that rule, take into account the additional health benefits of reducing other pollutants as a side effect of implementing the regulation.” Put another way, the EPA will no longer be required to count so-called “co-benefits” of reducing pollutants like soot and nitrogen oxide when it’s regulating mercury. It will only be required to count the benefits of reducing mercury.