D.C. Circuit Court Declares EPA’s Mercury Rule Illegal

Absolutely tremendous news from the Waterkeeper Alliance who was the lead group on the lawsuit challenging the Bush Administration’s evisceration of mercury control laws in 2005. Here’s the press release from the Waterkeeper Alliance:

Irvington, New York (February 8, 2008) – In a complete victory for public and environmental health, the U.S. Court of Appeals for the District of Columbia today invalidated a pair of EPA rules that would have allowed coal-fired power plants to overwhelm waterways, fish and communities with harmful levels of mercury for decades to come. The Court found EPA’s 2005 rules removing power plants from the Clean Air Act’s list of toxic sources and creating an anemic “cap and trade” regulatory scheme to be in violation of the Act.

Waterkeeper Alliance, as part of a coalition of a number of public health and environmental groups, fourteen states and dozens of Native American tribes, launched its challenge of EPA’s mercury rules over two years ago. Today, the Court, in striking down EPA’s actions, found that the Bush Administration’s explanation for delisting power plants “deploys the logic of the Queen of Hearts, substituting EPA’s desires for the plain text of (the Clean Air Act.)”

Power plants, the largest source of manmade mercury in the country, spew 48 tons of the dangerous neurotoxin into the air each year, while a single gram – 1/70th of a teaspoon – of mercury per year is enough to contaminate a 25-acre lake to the point that fish are unsafe to eat. EPA estimates that as many as 600,000 babies may be born in the United States annually with irreversible brain damage because pregnant mothers ate mercury-contaminated fish. Mercury risks also include delayed developmental milestones, reduced neurological test scores, and cardiovascular disease. Nearly one-third (32 percent) of America’s lakes and nearly one-fourth (24 percent) of our rivers were subject to advisories for mercury contamination in 2003.

Despite the devastating impact these emissions are having on the environmental and human health of the nation and clear mandates under the Clean Air Act, EPA has steadfastly refused to regulate power plant mercury pollution, instead coming up with a non-control plan that allowed the energy giants to continue emitting significant amounts of mercury. “These rules represented what was perhaps the biggest sellout to industry in the history of EPA,” said Waterkeeper Alliance Legal Director and attorney on the case, Scott Edwards. “It’s a real tragedy that we’ve had to spend two years getting this industry-scripted scheme struck down while energy companies continue to poison our children with mercury.”

With EPA’s delisting action declared illegal, the Agency is now obligated to develop “Maximum Achievable Control Technologies” standards for power plant mercury emissions. Several U.S. Department of Energy studies conducted over the past few years have demonstrated that upwards of 90 percent of power plant mercury emissions can be eliminated using affordable and available reduction technologies.

“This is a very positive ruling, but we should not forget that no matter how much this industry reduces mercury emissions, coal will never be clean,” added Waterkeeper Alliance President Steve Fleischli. “From mining to burning to toxic ash, ‘clean coal’ is a sham, a dangerous diversion at a time when we must move our national energy strategy to sustainable, renewable energy sources.”

Click here to download the 18-page opinion.

About Matt Wasson

As Appalachian Voices' Director of Programs, Matt has worked on all aspects of the "coal cycle" — from mining, transportation and combustion to the disposal of power plant waste — and is a nationally recognized authority on mountaintop removal coal mining and coal economics. Matt has testified before Congress and appears frequently on expert panels.