Another Twist in the Mercury Air Pollution Saga

On Monday, the U.S. Supreme Court announced that it would not be accepting an appeal of a case involving the Bush Administration’s regulatory plan for reducing air mercury emissions from power plants.  For the last two decades, the regulation of mercury air pollution has been caught up in a long and winding journey reminiscent of Homer’s Odyssey.   With the Supreme Court’s announcement, however, it appears that the mercury air pollution saga may soon be reaching its long-awaited conclusion.

This story began in 1990 when Congress, frustrated by EPA’s past failure to regulate toxic pollution effectively, amended the Clean Air Act to put regulation of a number of specific toxic pollutants on the fast-track.  In particular, these amendments directed EPA to undertake particular regulatory actions, and they set strict deadlines for EPA to achieve these actions.  Among the pollutants specifically targeted by these amendments was mercury.

Mercury is a potent neurotoxin that is particularly hazardous to the fragile neurological systems of developing fetuses and young children.  Coal-fired power plants are far and away the largest source of air mercury emissions.  Mercury goes up the smokestack and ends up in lakes and streams, and thus ends up in the fish we eat.

The 1990 Clean Air Act Amendments required EPA to complete a study of the public health effects of mercury air pollution from power plants by November of 1993.  On the basis of this study, EPA was supposed to determine if regulation of mercury air pollution from power plants was “necessary and appropriate.”  If this determination is made, EPA was then required to impose very strict technology-based regulations (maximum achievable control technology or MACT standards) on mercury emissions from power plants.

Unfortunately, EPA did not complete the required study until 1998—almost five years late.  Then EPA took another two years to announce its determination that regulation of mercury air pollution from power plants was “necessary and appropriate.”  Though many years late, environmentalists and public health advocates were cheered by the prospect of subjecting power plants to tough technology-based regulations for their mercury emissions.  If enacted in December of 2003 as originally planned, these technology-based regulations would have forced power plants to reduce their air mercury emissions by 90 percent by around 2007.

Before the final rule could be formally promulgated, however, the Bush Administration’s EPA abruptly changed course on regulating air mercury emissions from power plants.  In early 2004, EPA announced for the first time a new proposed plan for regulating air mercury emissions from power plants.  Instead of imposing strict technology-based requirements, as apparently required by the Clean Air Act, this new plan would rely on a weak cap-and-trade system, to be implemented in two phases.  During the first phase—starting in 2010 and ending in 2018—power plants were in effect not required to achieve any actual emissions reductions for mercury pollution.  During the second phase—beginning in 2018—power plants would be required to achieve a more modest 70-percent reduction in their mercury emissions, which would not be realized until sometime between 2020 and 2025.  Thus, under this new proposed plan for regulating mercury air pollution from power plants, the emissions reductions would be smaller and much further off into the future – almost 20 years after the first technology-based rule would have achieved its emission-reduction goals.

One barrier prevented EPA from enacting its new preferred plan for regulating air mercury emissions from power plants, however.  So long as the earlier “necessary and appropriate” determination was still in effect, EPA was required by law to regulate according to the tough technology-based standard.  The Bush Administration’s EPA quickly solved this problem by revising the earlier “necessary and appropriate” determination in March of 2005.  At the same time it published this revised determination, EPA also published its new air mercury pollution rule (the Clean Air Mercury Rule or CAMR).

Needless to say, many were not happy with EPA’s changed tune on regulating mercury emissions from power plants.  A number of states, municipalities, and public interest groups quickly challenged EPA in federal court, arguing that it did not follow the procedures required by the Clean Air Act in revising its “necessary and appropriate” determination.

In February of 2008, a panel of some of the most conservative judges in the U.S. Court of Appeals for the D.C. Circuit agreed that EPA had violated the Clean Air Act by not following the proper procedures for revising its “necessary and appropriate” determination.  As a result, the court vacated the weak cap-and-trade rule.

Rather than go back to the drawing board with its regulation of mercury emissions from power plants, EPA, with the blessing of the Bush Administration, appealed the court’s opinion to the U.S. Supreme Court in September of 2008.  Significantly, representatives from the power plant industry separately sought appeal of the D.C. court’s decision in the Supreme Court.

For months, environmentalists and public health advocates waited to see if the Supreme Court would accept either of the two petitions for appeal.  In early February, the Obama Administration announced that it would no longer continue its pursuit of an appeal of the D.C. Circuit Court’s opinion in the Supreme Court, leaving only the industry petition for appeal still pending.

With the Supreme Court’s rejection of industry’s petition this week, now that case is finished, too.  The Bush Administration’s weak air mercury pollution rule dies with it, and with a new administration more committed to protecting the public health and the environment now in office, environmentalists and public health advocates are now hoping that a happy ending to the long air mercury regulation story is in the offing.

Undoubtedly, a tough technology-based standard for regulating air mercury emissions from power plants is better achieved late than never.  But that’s cold comfort to those concerned about or suffering from the irreparable environmental and public health damage that is the direct result of 20 years of unjustified delay and brazen disregard for the law.