U.S. Supreme Court Blocks Weak Bush-era Mercury Rule

The Supreme Court's decision not to hear the case invalidates the U.S. EPA's so-called Clean Air Mercury Rule, which would have allowed dangerous levels of mercury pollution to persist under a weak cap-and-trade program that would not have taken full effect until after 2020.

The Supreme Court in effect denied an appeal, filed last year by a coalition of utilities, seeking reversal of a federal court decision vacating the mercury rule.

The original lawsuit that resulted in the February 2008 U.S. Court of Appeals ruling in favor of the states and environmental groups maintained that EPA illegally removed coal and oil-fired power plants from the list of regulated source categories under a section of the Clean Air Act that requires strict regulation of hazardous air pollutants, including mercury.

Left standing is the ruling by the appeals court that upheld the lower court ruling and rebuked the Bush-era EPA for attempting to create an illegal loophole for the power generating industry, rather than applying the Clean Air Act's "maximum achievable control technology" standard for mercury emissions.

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.

The James H. Miller coal-fired power plant in Alabama emits more mercury than any other generating station in the United States. (Photo credit unknown)

Seventeen states and dozens of Native American tribes, public health and environmental groups, and organizations representing registered nurses and physicians, challenged EPA's suite of rules in 2005.

The plaintiffs maintained that cap-and-trade contributed to "hot spots" for mercury, a neurotoxin linked to birth defects, learning disabilities and neurological problems.

New Jersey Attorney General Anne Milgram said the Supreme Court's denial of an appeal petition from the Utility Air Regulatory Group ends a long legal fight by New Jersey and other states to compel the federal government to issue tough new standards for mercury and other toxic air emissions from power plants.

"As of today, the protracted legal battle that has delayed proper regulation of mercury emissions from power plants is over, and the practice of allowing those plants to spew harmful quantities of a dangerous neurotoxin into our air in violation of federal law is at an end," Milgram said.

"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. Public Interest Research Group, Ohio Environmental Council, Natural Resources Council of Maine, and Conservation Law Foundation in the case.

Some 1,100 coal-fired units at more than 450 existing 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, the plaintiffs pointed out.

More than 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 water bodies in the state.

"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," said Woodworth. "With this ruling, we can now move forward with sensible mercury controls that will help reverse these trends."

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.

"While we applaud this ruling, mercury contamination from coal-fired utilities continues to grow as new plants are approved for construction," said Jon Mueller, Chesapeake Bay Foundation director of litigation. "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."

The EPA rules generated controversy when they were proposed in 2004, after it was discovered that industry attorneys had drafted key language that EPA included verbatim in its rule.

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."

The top 50 most-polluting coal-burning power plants in the United States emitted 20 tons of toxic mercury into the air in 2007, finds a November 2008 report from the nonprofit Environmental Integrity Project. Of the top 10 mercury emitting power plants, all but one reported an increase as compared to the previous year.

Once released into the atmosphere, mercury settles in lakes and rivers, where it moves up the food chain to humans who eat contaminated fish. The Centers for Disease Control has found that six percent of American women have mercury in their blood at levels that would put a fetus at risk of neurological damage.

Click here for a guide to the mercury levels found in various species of fish and shellfish.

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