Court Sides With Maine, Rules EPA Ignored Law on Mercury

EPA emissions policy fails to do enough to protect human health, judges say.

From staff and news services

Portland Press Herald news story

WASHINGTON — A federal appeals court ruled Friday that the Bush administration ignored the law by not imposing stricter limits on mercury pollution from power plants.

The ruling was cheered in Maine and 16 other states that filed the lawsuit, which argued that the mercury is poisoning wildlife and threatening human health.

“This ruling represents a significant victory for both the health of Maine people and our natural environment,” Maine Attorney General Steve Rowe said in a written statement. “Once again, the courts have rejected a Bush administration attempt to put the profits of corporate polluters above the health of the American people.”>/p>

Power plants are the biggest source of releases of mercury, which finds its way into the food supply, particularly fish. Mercury can damage the developing brains of fetuses and very young children. Scientists estimate the pollution may cause neurological problems in up to 60,000 newborns a year.

In December 2000, the Clinton administration established a mercury-control policy that required utilities to install the best available technology to capture mercury from power plant smokestacks. That equipment was expected to capture more than 90 percent of mercury releases.

But in 2005, the U.S. Environmental Protection Agency established an emissions-trading process in which some plants could avoid installing the expensive technology by buying pollution credits. The cap-and-trade approach envisioned capturing 70 percent of emissions by 2018.

Environmentalist and health experts argued that such a cap-and-trade mechanism would create “hot spots” of mercury contamination near some power plants. Seventeen states, as well as environmental and health groups, joined in a lawsuit to block the regulation, saying it did not adequately protect public health.

On Friday, the U.S. Court of Appeals for the District of Columbia Circuit ruled unanimously that the EPA violated the federal Clean Air Act when it scrapped the Clinton administration mercury policy. The three-judge panel held that the EPA failed to show that its new approach would not harm the environment or that emissions at all plants would not “exceed a level which is adequate to protect public health with an ample margin of safety.”>/p>

Members of Maine’s congressional delegation and several environmental groups, some of which joined in the lawsuit, issued statements praising the ruling and criticizing the EPA.

“EPA’s own scientists, its inspector general, the Government Accountability Office and now the courts have all found flaws in the rule,” Sen. Susan Collins, R-Maine, said in a prepared statement. “I urge EPA to develop a strong program based on science as quickly as possible in order to protect our citizens and our environment from this dangerously toxic chemical.”>/p>

A spokesman for Rep. Tom Allen, D-Maine, issued a statement saying the court confirmed that “the Clean Air Act requires the EPA to impose regulations on utility company practices in the Midwest and South to curb their emissions that cause mercury pollution nationwide. It also recognizes that cap-and-trade rules cannot address the serious threat mercury emissions pose in the immediate vicinity of polluting facilities.”>/p>

EPA spokesman Jonathan Shradar said the agency was reviewing the decision, but he indicated it was not giving up on the cap-and-trade approach to reducing mercury.

“This rule is still our policy until we evaluate how to move forward,” said Shradar. He emphasized that the court did not rule directly on the merits of the cap-and-trade approach, it “ruled against the process.”>/p>

But it is clear that the agency will now have to re-examine its approach to capturing mercury from power plants.

Industry organizations strongly supported the cap-and-trade mercury plan, arguing that the requirements for the best available technology at all plants would be too costly, would delay mercury reduction and may not even be achievable.