Mercury emissions debated in court

Court Again Overturns Controversial Bush Environment Rule

February 08, 2008
NEW YORK

A federal appeals court Friday overturned a Bush administration plan for cutting mercury emissions from power plants, siding again with states and environmental groups in an ongoing legal battle over the administration's effort to write business friendly rules for the utility industry.

The decision is one of several rulings by the court, the U.S. Court of Appeals for the District of Columbia, against Bush administration regulations that would have eased environmental requirements. Most prominently, the same court in 2006 struck down an Environmental Protection Agency rule that would have allowed coal-burning power plants more latitude to increase their output without installing pollution control devices.

"The Bush administration's track record in court is abysmal when it comes to environmental regulations," said Frank O'Donnell of the environmental group Clean Air Watch. "That's because they've illegally interpreted the law over and over again."

The latest setback for the administration comes over its effort to create an emissions trading market that would cut mercury emissions. Under the administration's plan, power plants starting in 2010 would be allowed to buy credits instead of actually cutting mercury emissions.

Coal-burning utilities such as American Electric Power Co. (AEP), Southern Co. (SO) and Duke Energy ( DUK) lobbied for the plan so they could have the flexibility to decide where on their systems mercury reductions would be cheapest.

Fourteen states and environmental groups sued, saying the Clean Air Act requires all plants to cut emissions of a toxic pollutant like mercury. They worried an emissions trading market would lead to "hot spots" of mercury around plants that bought credits instead of cutting emissions.

To create the market, the EPA had to reverse a Clinton administration finding that mercury pollution from coal-burning power plants is a "hazardous air pollutant" under the Clean Air Act.

That finding triggered the law's most stringent pollution reduction rules, potentially costing the utility industry billions of dollars over the next decade.

"These are the Cadillac of all emissions standards because the pollutants are so bad," said Jim Pew, an attorney for the environmental group EarthJustice who argued the mercury lawsuit before the D.C. circuit

The court said the administration didn't adequately justify its decision to reverse the Clinton administration's finding. The EPA must now come up with another scheme for cutting mercury emissions - or provide justification for its emissions trading market.

The EPA hasn't yet decided how it will respond to the ruling, said spokesman Jonathan Shradar.
"We are disappointed that the courts suspended the first-ever regulations of mercury emissions from power plants," he said.

Mercury is a potent neurotoxin that's contaminated lakes and rivers across the U.S. The Clinton administration finding determined there was a "plausible link" between man-made mercury pollution and mercury found in fish.

The utility industry expects to cut its mercury emissions significantly because of other requirements to install devices for reducing the pollution that forms smog and soot, said Dan Riedinger, spokesman for the Edison Electric Institute, the utility industry's main lobbying group. These devices also cut mercury pollution, but not as much as states and environmentalists say is necessary to protect public health.

"Air quality will continue to improve," he said. "But we won't know for a number of years what level of mercury reduction the federal government ultimately will require."

Emissions trading works well with pollutants like carbon dioxide, the main global warming gas, that don't cause environmental problems near the emissions source, said Vicki Patton, deputy general counsel of Environmental Defense, one of several environmental groups that sued the EPA over the regulation.

"It is entirely inappropriate to apply emissions trading to a toxic air pollutant that has serious human health impacts on a regional and local basis," Patton said.

Federal courts have recently taken a dim view of the EPA's environmental decisions. In 2006, the D.C. circuit court overturned major revisions by the EPA to the New Source Review provisions of the Clean Air Act. Those provisions would have allowed power plants to increase their output - and possibly their emissions - without installing pollution controls if the modifications cost less than 20% of the value of the plant.

The same court last year also overturned air toxics standards from the EPA that would have exempted many brick and cement kilns from regulation.

The Supreme Court in April dealt the administration its most high-profile setback, ruling that the EPA must regulate greenhouse gas emissions from automobiles.

"EPA political appointees came up with what they thought were terribly clever arguments to keep their former clients from having to clean up," said Pew of EarthJustice. "Invariably those arguments have been rejected by the courts as stupid."

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