Court Says EPA Rule Allowing More Power Plant Mercury is Illegal


EPA violated the law by evading required power plant mercury reductions


James Pew, Earthjustice, (202) 667-4500 

A federal appeals court ruled this morning that a rulemaking by the Environmental Protection Agency violates the Clean Air Act by evading mandatory cuts in toxic mercury pollution from coal- and oil-fired power plants. The decision invalidates the agency’s so-called "Clean Air Mercury Rule," which would have allowed dangerously high levels of mercury pollution to persist under a weak cap-and-trade program that would not have taken full effect until well beyond 2020.

Fourteen states and dozens of Native American tribes, public health and environmental groups, and organizations representing registered nurses and physicians challenged the EPA’s suite of rules in 2005. The ruling by the United States Court of Appeals for the District of Columbia Circuit rebuked EPA for attempting to create an illegal loophole for the power generating industry, rather than applying the toughest emission standards of the Clean Air Act. The states challenging this EPA rule are California, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Vermont and Wisconsin.

EPA unlawfully decided to remove power plants from the most protective requirements of the Clean Air Act, reasoning they had the authority under the law to do so. "This explanation deploys the logic of the Queen of Hearts, substituting EPA’s desires for the plain text…" of the law, the court wrote in its decision.

"The federal court agrees with the American Medical Association that EPA’s flawed mercury program for coal plants is hazardous to our health," said Vickie Patton, an attorney with Environmental Defense, which along with Sierra Club and the National Wildlife Federation was represented by Earthjustice in the lawsuit. "This decision is a victory for the health of all Americans, but especially for our children who can suffer permanent brain damage from toxic mercury pollution."
EPA estimates that as many as 600,000 babies are born annually at risk of serious harm from exposure to high maternal blood-mercury levels resulting from contaminated fish consumption.

"Coal company claims of ‘clean coal’ will now be put to the test," said Alice McKeown, coal analyst for the Sierra Club. "These mercury pollution reductions will be an important trial run to see if coal is still viable in a cleaner energy future."

The EPA’s actions declared unlawful today included first removing power plants from a regulatory list requiring the toughest Clean Air Act safeguards against toxic pollution. The agency then proposed to replace these standards with a much weaker mercury cap-and-trade program that failed to reduce mercury emissions from each power plant in the country, achieved weaker reductions at plants required to do something, and would have taken effect well beyond dates mandated in the Clean Air Act.

"The court has now told EPA in no uncertain terms to follow the law as it is written. We are looking forward to working on rules that reflect the most stringent controls achievable for this industry, as the Clean Air Act requires," said Ann Weeks, attorney for Clean Air Task Force who represented U.S. PIRG, Ohio Environmental Council, Natural Resources Council of Maine, and Conservation Law Foundation in the case. "That’s what is needed now, if we are ever to alleviate the problem of mercury contamination in fish and wildlife."

Approximately 1,100 coal-fired units at more than 450 existing power plants spew 48 tons of mercury into the air each year. Yet only 1/70th of a teaspoon of mercury is needed to contaminate a 25-acre lake to the point where fish are unsafe to eat. Over 40 states have warned their citizens to avoid consuming various fish species due to mercury contamination, with over half of those mercury advisories applying to all waterbodies in the state.

"These two rules represented what was perhaps the biggest sellout to industry in the history of EPA," said Waterkeeper Alliance Legal Director, Scott Edwards. "It’s a real tragedy that we’ve had to spend two years getting this industry-scripted scheme struck down while energy companies continue to poison our children with mercury."

Power plants also emit tens of thousands of tons of other air toxics, including hydrogen chloride, arsenic, and lead.

"The technology exists to dramatically reduce toxic mercury pollution, and it is years past time to put that technology to work," said the Chesapeake Bay Foundation’s Litigation Director Jon Mueller.

"With today’s decision, EPA will now have to get back to the business of protecting people’s health rather than higher profits for electric utilities," said John Suttles, attorney with the Southern Environmental Law Center who represented Physicians for Social Responsibility, American Nurses Association, American Public Health Association, and the American Academy of Pediatrics in the lawsuit.

The EPA rules generated controversy from the moment they were proposed in 2004, when it was discovered that industry attorneys — from the law firm from which EPA’s political management hailed — had drafted key language that EPA included verbatim in its proposal to let power plant companies off the hook. EPA’s internal auditor in the Office of Inspector General later discovered that EPA’s senior political management had ordered staff to work backwards from a pre-determined political outcome, "instead of basing the standard on an unbiased determination of what the top performing [power plant] units were achieving in practice."

"Today’s ruling should show power plant companies and the EPA once and for all that they may cheat and delay required clean-up obligations, but the law will catch up to them," said John Walke, attorney with the Natural Resources Defense Council (NRDC). "Electric power plants are America’s worst polluters of mercury, smog, soot and global warming pollution, and their days of reckoning are long overdue."

"The Bush administration cannot ignore its responsibilities to bring power plants’ mercury pollution under control," said Earthjustice attorney James Pew. "We hope the administration will gain some new respect for the law in its last year and start working to protect Americans from pollution and stop working to shield polluters from their lawful cleanup obligations."

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