Danger in the Air

Earthjustice is defending the Mercury and Air Toxics Standards — a rule that saves up to 11,000 people from early deaths each year.

A coal-fired power plant in Pennsylvania, reflected in a neighboring home's window.
The Cheswick coal-fired power plant in Pennsylvania, reflected in a window of a home in Springdale, is among the hundreds of power plants likely covered by the Mercury & Air Toxics Standards. (Chris Jordan-Bloch / Earthjustice)

When coal is burned in the U.S., most of the mercury in the coal no longer spews into our air. This improvement is due to a 2011 federal rule that Earthjustice fought for and continues to defend in court.

Our Clients Air Alliance Houston, Chesapeake Bay Foundation, Chesapeake Climate Action Network, Clean Air Council, Downwinders at Risk, Montana Environmental Information Center, NAACP, Sierra Club

The Mercury and Air Toxics Standards was widely adopted by industry and has proven enormously successful at limiting dangerous air pollution.

Despite the undisputed health benefits of the protections — including saving up to 11,000 lives each year from premature death — a few polluters and their allies continued to attack the Mercury and Air Toxics Standards.

Learn about the Mercury and Air Toxics Standards:

1. The Mercury and Air Toxics Standards force older, dirtier power plants to clean up their act.

Coal-fired power plants are the worst of the worst industrial polluters.

Until the Mercury and Air Toxics Standards came on line, power plants accounted for half of the total man-made emissions of mercury in America and more than half of all arsenic, hydrochloric acid, hydrogen fluoride, and selenium emissions. They are also among the worst emitters of other toxics, including lead (think Flint, Michigan) and chromium (think Erin Brockovich).

Initially established in late 2011 after decades of effort by Earthjustice and others, the Mercury and Air Toxics Standards became the first set of federal regulations to

  • Limit mercury and other air toxics emitted by power plants, and
  • Require meaningful reductions of pollution from many older coal plants that had been allowed to dodge pollution control requirements for decades.

“The idea of the Mercury and Air Toxics Standards is to get all the air toxics out of power plants, not just mercury,” says Earthjustice attorney Jim Pew, who has been working to clean up air pollution from our nation’s power plants for more than a decade.

“It’s the first rule to take a serious bite out of pollution from old, dirty power plants, which account for more hazardous air pollution than any other industry.”

2. The Mercury and Air Toxics Standards drastically reduces toxic air pollution.

Once the Mercury and Air Toxics Standards was enacted, the worst emitting power plants had to choose between shutting down or installing pollution control equipment such as baghouses and scrubbers. The results were stunning.

Mercury emissions from power plants dropped by 81.7 percent from 2011 through 2017, according to analysis by the Center for American Progress. And, contrary to dire predictions by lobbyists for the power industry, power plants are continuing to operate and the lights remain on.

“The reductions were very significant; everything worked very smoothly,” Earthjustice attorney Jim Pew says. “The rule is working just fine.”

3. The Trump EPA sought to undermine the Mercury and Air Toxics Standards. A dangerous precedent is at stake.

Even after the Mercury and Air Toxics Standards took effect, the coal mining company Murray Energy continued to challenge them in court. A former lobbyist for the company, Andrew Wheeler, became the head of the U.S. Environmental Protection Agency during the Trump administration.

In 2020, Wheeler attempted to undo the Mercury and Air Toxics Standards in a particularly sneaky way. Rather than withdrawing the protections openly — a maneuver the courts have already nixed — Wheeler declared in April 2020 that controlling coal-fired power plants’ toxic pollution was never “appropriate” in the first place.

The Trump EPA’s move weakened the legal foundation of the Mercury and Air Toxics Standards and invited court challenges from industry groups hostile to these protections. Coal company Westmoreland Mining Holdings went after the standards in court the following month.

Civil rights and environmental organizations, represented by Earthjustice, responded by suing the Trump EPA over the decision. Earthjustice clients are also intervening in Westmoreland’s lawsuit.

The Trump EPA’s decision could establish dangerous precedent for future regulations. The new rule could create a higher threshold for future regulations by narrowing the range of benefits the agency can consider when devising new rules.

This would make it nearly impossible for the EPA to justify new life-saving protections.

4. The Trump EPA’s ploy cooked the cost-benefit books.

The Trump EPA’s argument was that the Mercury and Air Toxics Standards was not “appropriate” because its costs outweighed its benefits. But that claim rested on some very dodgy accounting.

First, the Trump EPA considered only the benefits of pollution reduction that have been “monetized” — i.e., reduced to a monetary value. For example, it didn’t count the benefit of eliminating vast quantities of mercury from our air, water, and fish because those benefits have never been monetized. Likewise, the EPA assigned no value at all to eliminating tons of emissions of lead, arsenic, and chromium emitted by power plants. Instead, the analysis considered only the monetized value of the IQ points it anticipated would be lost by children who were exposed to mercury in freshwater fish.

Second, the Trump EPA dismissed the value of benefits that have been monetized. It is undisputed that the Mercury and Air Toxics Standards also will eliminate the emissions of thousands of tons of fine particulate matter emissions, along with power plants’ emissions of mercury, lead, and other hazardous air pollutants. The EPA itself has robust data on the health benefits — and the monetary value — of the reduction of particulate matter emissions. It will prevent:

  • up to 11,000 premature deaths from respiratory and cardiovascular illness;
  • 3,100 emergency room visits for children with asthma;
  • more than 250,000 fewer cases of respiratory symptoms and asthma exacerbation in children;
  • and 4,700 non-fatal heart attacks.

All that adds up monetarily to $90 billion. The total cost of the rule is about $9 billion — dimes to dollars.

5. The Biden-Harris EPA has moved to restore authority to limit power plants’ toxic air emissions.

On its first day in office, the Biden-Harris administration directed the EPA to review the previous administration’s actions on the Mercury and Air Toxics Standards.

On May 13, 2021, EPA Administrator Regan announced that the cost-benefit rule would be rescinded. The repeal will take effect 30 days after the notice is published in the Federal Register.

On Jan. 31, 2022, the EPA proposed restoring the legal finding that it is “appropriate and necessary” to regulate power plants’ hazardous air emissions. Restoring the legal finding also paves the way for EPA to strengthen the Mercury and Air Toxics Standards and ensure that all communities are fully protected from this dangerous pollution.

Much of the power plant industry supports the Mercury and Air Toxics Standards as it stands. Edison Electric Institute, the association that represents all U.S. investor-owned electric companies, and other utilities have written letters to the EPA saying just that.

“They’ve already spent the money to comply, they don’t want a disruption by having the deregulation, and they don’t want the bad actors like Murray Energy to get a competitive advantage from this,” Earthjustice attorney Jim Pew says.

“What an amazing effort to snatch defeat from the jaws of victory,” Pew says. “Wheeler’s con game would have benefited no one but his former clients and, if successful, it would have released tons of toxic pollution into the air and cause thousands of people to die unnecessarily every year.”

For more information, read Erasing Lives: The EPA’s Crooked Scheme, a report from Earthjustice on the 20-year battle to regulate power plants, the backstory behind the Trump administration’s efforts to overturn the protections, and personal stories from those who live near power plants.

Jim Pew is a senior attorney in the Washington, D.C., office. He joined Earthjustice in 1997. Since then, his work has included air toxics litigation to reduce toxins emitted from hazardous waste incinerators, cement kilns, coal-fired power plants, and more.

Earthjustice’s Washington, D.C., Office, established in 1978, defends and strengthens national standards for clean air and clean water, and safeguards public health in the mid-Atlantic region.