States, Green Groups File Suit to Block Bush Mercury Rule

By J.R. Pegg

WASHINGTON, DC, May 18, 2005 (ENS) – Eleven states and a dozen environmental and conservation organizations filed a flurry of lawsuits today to block the Bush administration’s plan to cut mercury emissions from power plants. The plaintiffs say the Bush mercury regulations violate federal environmental law and fail to protect public health and the environment.

“These rules are deeply flawed and contrary both to science and the law,” said New Jersey Attorney General Peter Harvey.

Harvey filed suit today in the U.S. Court of Appeals for the D.C. Circuit on behalf of New Jersey, California, Connecticut, Maine, Massachusetts, New Hampshire, New Mexico, New York, Pennsylvania, New York, Vermont and Wisconsin.

The suit alleges that the Bush regulation, which establishes a mercury emissions trading program, allows individual power plants to reduce emissions at varying rates. This is will create local hot spots of pollution, disproportionately impacting individual communities, the plaintiffs claim.

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California Attorney General Bill Lockyer (Photo credit unknown)
“All of our communities, all of our women and children, deserve the strongest possible protections against exposure to this significant public health hazard,” said California Attorney General Bill Lockyer.

Exposure to mercury, usually through eating contaminated fish, can cause permanent neurological damage in humans and reproductive harm in wildlife.

Some 44 states have issued fish consumption advisories due to mercury contamination in some or all of their waters.

Young children and women of childbearing age are most at risk – the federal government estimates at least one in eight American women of childbearing age has unsafe levels of mercury in her blood.

In addition to the states’ suit, 12 national and regional green groups today filed four separate suits challenging the rule in federal court.

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PPL Generation's Montour Power plant in Pennsylvania (Photo courtesy Mark Morey)
“This collective effort demonstrates widespread consensus that EPA’s approach to regulating mercury and other air toxics from coal-fired power plants leaves public health at risk and violates the law,” said Felice Stadler of the National Wildlife Federation. “We have a responsibility to future generations to ensure that toxics like mercury are not in our food chain.”

Scott Segal, director of the Electric Reliability Coordinating Council, a utility industry lobbying organization, says litigation against the Bush mercury rule simply slows the decrease of the emissions critics claim to be in favor of reducing.

“Litigation is a recipe for delay and uncertainty in federal mercury policy, much to the detriment of the American people,” Segal said.

But the U.S. Environmental Protection Agency’s (EPA) development of the rule, and the influence of the Bush administration and the industry in shaping the regulation, has been charged with controversy.

A report by the EPA Inspector General found that senior agency officials manipulated the development of the mercury rule in order to favor the emissions trading plan.

In addition, the Government Accountability Office, the investigative arm of Congress, determined the agency’s economic analysis of the mercury rule was seriously flawed.

The Bush administration released its mercury rule to the public in March – it was printed today in the Federal Register.

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The San Juan Power Plant is operated by Public Service New Mexico on behalf of nine Western utility owners, including investor-owned companies, coops, and public power companies. (Photo courtesy Public Service New Mexico)
Mercury emissions from U.S. power plants are currently unregulated. These facilities emit some 48 tons of mercury each year, accounting for about 40 percent of the nation's mercury pollution.

The Bush rule caps the industry’s total mercury emissions at 38 tons in 2010 and at 15 tons in 2018, according to the EPA, and allows utilities to cut their emissions or purchase credits from others who have made more drastic cuts.

Proponents say the plan is the most cost-effective way to cut mercury pollution and argue deeper cuts would hurt the industry – and raise electricity costs - without much benefit to public health.

In addition, supporters of the emissions trading plan say the U.S. power plant industry only accounts for about one percent of global emissions – the toxic metal does not break down in the environment.

Current emissions of mercury add to the existing pool, which is continuously mobilized, deposited on land and water, and remobilized.

The plaintiffs allege the cap and trade plan marks a drastic shift for mercury emissions regulation.

To enable the rule the EPA had to revise its December 2000 finding that it is "appropriate and necessary" to regulate mercury as a hazardous air pollutant.

The move lifted the power plant industry from the Clean Air Act’s requirement that it use maximum achievable control technology (MACT) to cut toxic emissions, including mercury.

Litigation filed in March by the attorneys general separately challenged that decision.

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New Jersey Attorney General Peter Harvey today filed suit against the Bush administration on behalf of 11 states. (Photo courtesy Office of the Attorney General)
The attorneys general also note that in a presentation to an industry trade group in 2001, EPA officials said MACT could reduce mercury emissions 90 percent – to 5.5 million tons – four years after a rule is finalized.

Utility representatives say such technologies are too expensive and not commercially viable – and some cast doubt on the industry's ability to meet the goals of the Bush rule.

”There is no mercury control technology that exists today that can achieve the reduction levels finalized in the Clean Air Mercury rule, let alone the 90 percent reductions advocated by some activists,” Segal said.

Advocates of a stronger mercury rule contend the technology does exist and will be commercially available once there is a strong market demand for it.

They point to the findings of the nonprofit association of air quality agencies of the Northeast states, which said the industry’s annual mercury emissions of could be reduced to seven tons through existing air pollution controls and utilization of commercially available mercury reduction technologies.

“This EPA rule does not do nearly enough to reduce mercury pollution from power plants,” said New York Attorney General Eliot Spitzer. “The people and the environment deserve better.”