It's the End of the Road for Bush-Era Power Plant Mercury Cap-and-Trade Rule


Following new administration's request, U.S. Supreme Court declines to hear case


Jim Pew/Kathleen Sutcliffe, Earthjustice, (202) 667-4500

The United States Supreme Court this morning issued an order declining to consider overturning a decision invalidating and vacating a Bush-era rulemaking allowing cap and trade of toxic mercury emitted by the U.S. power industry.

The lower federal court in 2008, comparing the Bush administration’s logic to that of the dangerously irrational Queen of Hearts character in Alice in Wonderland, held 3-0 that the Environmental Protection Agency rule violated the Clean Air Act by evading mandatory cuts in toxic mercury pollution from coal- and oil-fired power plants. The Supreme Court’s decision not to hear the case finally and completely invalidates the 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.

"The Supreme Court has now confirmed that EPA must 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."

The Supreme Court also granted the Obama administration’s request — made two weeks ago — to drop the Bush administration appeal.

"Today’s good news is due in no small part to the leadership of the Obama administration, in renouncing the harmful Bush administration actions and embracing EPA’s responsibilities to protect the American people against mercury and other toxic pollution," said John Walke, senior attorney for the Natural Resources Defense Council.  "Administrator Jackson has a special opportunity to clean up harmful air pollution from power plants once and for all and her leadership so far bodes well for the future."

Among the groups involved in last year’s successful court challenge was Earthjustice, who argued the case before the lower court on behalf of Environmental Defense Fund, National Wildlife Federation, and Sierra Club.

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.

"While we applaud this ruling, mercury contamination from coal fired utilities continues to grow as new plants are approved for construction," said Chesapeake Bay Foundation Director of Litigation Jon Mueller. "Every year in the Chesapeake Bay region additional fish consumption advisories are issued.  EPA must take action quickly to curtail this threat to public health."

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

"Industry’s desperate, last-gasp effort to continue poisoning our waterways and communities with toxic mercury has met a fitting end," stated Waterkeeper Alliance Legal Director Scott Edwards. "We welcome the Court’s decision as yet another step in our continuing efforts to put to rest, once and for all, the myth of clean coal."  

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."

"We’re relieved that the Supreme Court has put the final nail in the coffin of this ill-advised regulation, which left the Adirondacks and Catskills vulnerable to continued mercury contamination," said Neil Woodworth, executive director of the Adirondack Mountain Club. "Ninety-six percent of the lakes in the Adirondack region exceed the recommended EPA action level for methyl mercury in fish. In the Catskills, health officials have advised children and women of childbearing age not to eat fish from six Catskill reservoirs, reservoirs that also provide New York City with its drinking water. With this ruling, we can now move forward with sensible mercury controls that will help reverse these trends."

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