The U.S. Court of Appeals for the District of Columbia ruled that the agency's 2005 "Clean Air Mercury Rule," violates the Clean Air Act by evading mandatory cuts in toxic mercury pollution from power plants that burn coal and oil.
The EPA now has two years to develop mercury emissions standards for existing power plants.
The decision invalidates the EPA's controversial cap-and-trade approach to regulating mercury emissions that would not have taken full effect until well beyond 2020.
Cap-and-trade allows power plants to purchase emissions credits from other plants that have cut emissions below targeted levels, rather than installing pollution controls at their own plants.
Power plants are sources of mercury, arsenic, lead, other heavy metals, and dioxins. Because these toxic pollutants are all classified as "hazardous," the Clean Air Act requires the EPA to identify their sources and develop the most stringent standards to control emissions from those sources.
The court ruled today that the EPA erred when it took power plants off the list of hazardous pollution sources when issuing its Clean Air Mercury Rule.
The lawsuit was filed by New Jersey on behalf of the coalition of states.
The BL England power plant in southern New Jersey burns coal and oil. New owners Rockland Capital Energy Investments pledged to reduce the facility's mercury and other hazardous emissions. (Photo by Curt Bergesen)
Calling the decision "an important victory," New Jersey Attorney General Anne Milgram said, "From the beginning we have maintained that the EPA adopted standards for regulating mercury, a dangerous neurotoxin, which were weak, ineffectual and ran counter to the clear intent of the Clean Air Act."
"Our persistence has paid off in a tremendous victory that will result in a healthier environment for New Jersey's residents - especially our children," said Department of Environmental Protection Commissioner Lisa Jackson. "I am thrilled that the United States Court of Appeals has agreed with us by voiding the misguided federal cap-and-trade approach. It simply does not work for emissions of a neurotoxin as dangerous as mercury."
Some 450 existing coal and oil burning power plants emit 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.
More than 40 states have warned their residents to avoid consuming various fish species due to mercury contamination, and more than half of those mercury advisories apply to all water bodies in the state.
The states were joined in the legal challenge by the American Academy of Pediatrics, the American Public Health Association, the American Nurses Association and Physicians for Social Responsibility, representing more than 300,000 doctors, nurses, medical researchers and health care professionals.
"Today's decision is a huge victory as it requires EPA 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 argued on behalf of the public health organizations.
The ruling will have an immediate effect on the nation's approximately 100 proposed new coal-fired power plants. According to the ruling, new plants must determine on a case-by-case basis how to control mercury pollution at least as well as the best-controlled similar source.
The Conemaugh Generating Station in western Pennsylvania burns coal and oil.
"The mercury emitted by our nation's coal-fired power plants poses serious health risks for all Americans," said Georges C. Benjamin, MD, executive director of the American Public Health Association. "Congress and now the courts are recognizing the need for stronger environmental protections to safeguard human health. We call upon the EPA to uphold the intent of Clean Air Act and work to eliminate mercury emissions."
Mercury emitted from power plants is deposited in water bodies, where it is converted to its most toxic form, methylmercury. This chemical is taken up by fish and then eaten by humans. The EPA estimates that as many as than 600,000 children are born each year with unhealthy levels of methylmercury in their bodies.
Despite this figure, EPA adopted the mercury rule, ignoring the counsel of its own Children's Health Public Advisory Committee and thousands of health professionals nationwide.
"For pediatricians, who see daily the direct impact dangerous environmental emissions have on children's health, the D.C. Circuit Court's decision is an important victory for children, families and communities" said American Academy of Pediatrics' President Renée R. Jenkins, MD.
"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," Patton said.
The coal-fired Dallman power plant near Springfield, Illinois (Photo by Stephen B. Davis)
The lawsuit maintained that the EPA illegally removed coal and oil-fired power plants from the list of regulated source categories under a section of the federal Clean Air Act that requires strict regulation of hazardous air pollutants, including mercury.
The EPA sought to avoid requiring power plants to regulate their mercury emissions by using the criteria of "maximum achievable control technology."
"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," she said.
The government coalition led by New Jersey involved California, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Mexico, New York, Pennsylvania Department of Environmental Protection, Rhode Island, Vermont, Wisconsin and the City of Baltimore.
"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. "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."
Copyright Environment News Service (ENS) 2008. All rights reserved.