Attorneys at Chesapeake Bay Foundation (CBF), Clean Air Task Force, Earthjustice, Natural Resources Defense Council, Southern Environmental Law Center, and Waterkeeper Alliance filed the lawsuit today in DC District Court on behalf of American Nurses Association, CBF, Conservation Law Foundation, Environment America, Environmental Defense Fund, Izaak Walton League of America, Natural Resources Council of Maine, Natural Resources Defense Council, the Ohio Environmental Council, Physicians for Social Responsibility, Sierra Club, and Waterkeeper Alliance.
Today's lawsuit follows President-elect Barack Obama's appointment of Lisa Jackson to head the agency. Groups expressed hope that the incoming administration will take a new approach to regulating pollution from power plants and act quickly to bring the problem under control.
"We are far past both the legal and, indeed, the moral deadline for EPA to take action to control toxic air emissions from this enormous industrial source of mercury and other poisons," said Clean Air Task Force attorney Ann B. Weeks. "At the same time we are hopeful that the Obama administration will act quickly to mandate the deep cuts in this pollution, as the Clean Air Act requires."
According to the Centers for Disease Control and Prevention, eight percent of American women of childbearing age have mercury in their bodies at levels high enough to put their babies at risk of birth defects, loss of IQ, learning disabilities and developmental problems.
"Children and women of childbearing age are at risk when power plants emit the levels of mercury they are emitting today -- all 50 states, and one US territory, have declared fish advisories warning about mercury contamination," said John Suttles, senior attorney, Southern Environmental Law Center. "It is time to require deep reductions from this industry."
Under the Clean Air Act, EPA was required to control power plants' emissions by December, 2002. Instead of meeting that requirement, however, the Bush administration asked Congress to roll back the control requirements. Then, unable to win Congress' support for that request, the administration unlawfully tried to declare that the required pollution controls were simply not necessary or appropriate.
"Power plants are the largest unregulated industrial source of air toxics," said Earthjustice attorney Jim Pew. "It is unconscionable that six years after the deadline for action, we still do not have air toxics controls on these large existing sources of pollution."
The federal appeals court in D.C. tossed out EPA's attempt in February 2008, in a lawsuit brought by a coalition of environmental and public health groups, states and Native American tribes. Baffled by the Bush administration's reasons as to why it should not set these requirements, the court compared its logic to that of the dangerously irrational Queen of Hearts character in Alice in Wonderland. Now EPA is back where it started: in violation of the 2002 statutory deadline to control power plants' toxic pollution.
"EPA's failure to protect our children's health from toxic mercury pollution has allowed coal plants to release more than 700,000 pounds of mercury pollution over the past eight years. The era of deny and delay in failing to protect America's children from toxic air pollution is coming to a close," said Vickie Patton, deputy general counsel at Environmental Defense Fund. "We look forward to working with new leadership for America that will follow the science and enforce the law to protect our children and our communities from toxic air pollution."
In the intervening 10 months since the court ruling, EPA has made no moves to comply with the court's order, prompting today's lawsuit.
"With the devastating impacts mercury is having on our waterways, fish, women and children in the US, EPA's failure to pass a mercury control rule that safeguards both human and environmental health is perhaps the most damning example of an agency blind to its mission and mandate," stated Waterkeeper Alliance Legal Director Scott Edwards. "Sadly, once again, the Bush administration has accomplished what the energy industry hired it to do eight years ago -- protect their profits, promote their interests and avoid any accountability."
Approximately 1,100 coal-fired units at more than 450 existing power plants spew some 96,000 pounds of mercury into the air each year.
"There are affordable technologies widely available today that can substantially reduce mercury and other toxic pollution from coal-fired power plants," said Bruce Nilles, director of the Sierra Club's National Coal Campaign. "By turning a blind eye to these technologies the EPA is unnecessarily putting the health of children everywhere at risk."
Much of the mercury and other metals in the air toxics plume fall out within 100 miles of the power plant source, and mercury accumulates up the food chain in fish and in the animals that consume it. In addition to human health effects, significant adverse effects on wildlife also have been linked to power plant mercury.
"Studies have clearly demonstrated that a significant amount of mercury pollution from power plants falls locally, and almost all waterways in Virginia, Maryland and Pennsylvania have fish consumption advisories due to mercury," said Chesapeake Bay Foundation's Director of Litigation Jon Mueller. "While some states have taken action to reduce mercury pollution others have not, underscoring the need for national standards."
"The Bush EPA will leave behind a mercury pollution legacy of shame and irresponsible delay," said John Walke, senior attorney, Natural Resources Defense Council. "After eight years, all they managed was to break the law and fail to clean up power plants' rising toxic emissions."
Read the complaint (PDF)
Jim Pew/Kathleen Sutcliffe, Earthjustice, (202) 667-4500