Court raps EPA rules on mercury

In yet another rebuke to the U.S. Environmental Protection Agency, a federal appeals court ruled yesterday that the agency wrongly exempted power plants from strict limits on mercury emissions.

It means the agency must develop new rules to fight mercury pollution.

The U.S. Court of Appeals for the District of Columbia Circuit nixed the EPA's decision to allow a so-called cap-and-trade system, which would have let power plants that fail to meet mercury emissions targets buy "credits" from other plants rather than install more advanced pollution controls.

Although New Jersey and Pennsylvania have stricter limits on power plants than the federal government imposed, officials said the states would benefit from yesterday's ruling because the EPA will likely have to limit emissions from plants reaching upwind states.

"The winds blow west to east," and the pollution comes with it, said Daniel Cunningham, a spokesman for Public Service Electric & Gas in New Jersey.

Mercury becomes airborne when coal is burned. Once it falls into waterways, it becomes methylmercury, which is more toxic and works its way through the food chain into fish. It can cause nervous-system damage in a developing fetus and young children.

Many states, including Pennsylvania and New Jersey, have advisories setting limits on how much fish people can safely consume from state waters.

While environmentalists hailed the ruling as a victory for the health of Americans, a leading energy-industry advocate criticized the ruling as doing just the opposite.

"There's an irony here," said Scott Segal of the Electric Reliability Council. "What the environmental community has delivered up with this lawsuit is the elimination of our only national air standard for mercury."

Now, he said, it may take from three to five years for the government to put new mercury-control standards in place.

EPA press secretary Jonathan Shradar said the agency was disappointed by the decision, and was reviewing it to consider what action to take. He said the court's decision was "procedural" and not a blanket condemnation of cap-and-trade.

In its 18-page ruling, the court said the EPA's arguments for moving power plants to a different section of the Clean Air Act were "not persuasive."

"This explanation deploys the logic of the Queen of Hearts, substituting EPA's desires for the plain text" of the Clean Air Act, the court said.

The unanimous decision was issued by a three-judge panel, two judges appointed by President Bill Clinton and one by President Bush.

The decision comes on the heels of other challenges to EPA rulings.

In December, Pennsylvania, New Jersey and other states vowed a court battle over the EPA's decision to block states from requiring stricter controls on auto emissions. Last April, the Supreme Court rejected the EPA's claim that it did not have the authority to regulate carbon dioxide from vehicles.

Carl Tobias, a law professor at the University of Richmond, said yesterday's decision sent a clear message. "They said, 'You have it wrong. You violated congressional intent.' That's pretty serious."

The lawsuit, arguing that the EPA violated the Clean Air Act, was filed by New Jersey and included 14 other states, including Pennsylvania, and various environmental organizations.

According to the Pennsylvania Department of Environmental Protection, the commonwealth is second in the country (behind Texas) for mercury pollution from power plants.

Cap-and-trade is a way to use the market to control pollution. If plants that don't meet standards don't want to purchase new equipment, they can purchase credits from others that are below the emissions targets.

In late 2006, Pennsylvania disallowed cap-and-trade and required all power plants to reduce their mercury emissions by 90 percent by 2015.

Critics say the approach is wrong-headed when it comes to mercury, because studies have shown that the greatest deposits of mercury remain in "hot spots" in the immediate area of a power plant.

" . . . You're not doing anything to help the people who live around that plant," said Ron Ruman, DEP spokesman.

In 2004, New Jersey adopted rules that required emissions reductions from coal-fired plants starting last year. They are to result in 90 percent reductions overall by the end of 2012.

State Department of Environmental Protection Commissioner Lisa P. Jackson said in a statement that cap-and-trade "simply does not work for emissions of a neurotoxin as dangerous as mercury."

"This decision is yet another example of the Bush administration's failure to protect the health and safety of our communities," said Sen. Frank R. Lautenberg (D., N.J.).

Currently, plants in Pennsylvania and New Jersey are spending billions of dollars to meet the new state standards.

While he opposes stricter state limits, Douglas Biden, president of the Electric Power Generation Association in Harrisburg, said that the federal ruling nevertheless "in part levels the playing field from a competitive perspective."

Environmentalists say the ruling will force power companies to prove their arguments that coal can be a clean source of power.

Said Alice McKeown, coal analyst for the Sierra Club: "These mercury-pollution reductions will be an important trial run to see if coal is still viable in a cleaner energy future."