EDF Goes to Court to Defend the Mercury and Air Toxics Rule

Last week, at the same time that the Supreme Court was considering states’ good neighbor obligations to protect  the health of residents in downwind states by controlling pollution from sources within their own states, the Court of Appeals for the D.C. Circuit was hearing challenges to the Environmental Protection Agency’s (EPA) Mercury and Air Toxics rule.

The Mercury and Air Toxics rule is a major public health rule that is the result of a decades long effort to ensure power plants clean up the mercury, acid gases, and toxic metals that are released into our environment from burning coal.

At the core of the case is one issue:

• Did Congress intend to give power plants a sweetheart deal on air toxics when they passed the Clean Air Act Amendments in 1990?

Or:

• Was Congress merely asking EPA to stop and check whether other programs that were passed at the same time might do enough to address the risks of toxic air pollution from power plants?

The 1990 Clean Air Act amendments did a great deal to strengthen our air pollution laws. In addition to limiting the pollution that led to acid rain and ozone, Congress tightened enforcement and monitoring requirements, and completely overhauled regulation of toxic air pollution to speed up and strengthen EPA’s previously slow regulation efforts on toxics.

In court last week, while counsel for the utility industry tried to suggest that Congress has intended an entirely separate, distinct, and less stringent toxics plan just for the utility industry, the court seemed skeptical, asking if this was just a political deal to give industry more time.

Power companies also argued that EPA should have taken cost into consideration when deciding whether to regulate them.

Both EPA and EDF’s counsel give an apt response –the cost of control technology isn’t relevant to deciding whether EPA should regulate toxic pollution from power plants. Instead, cost is taken into account when setting the pollution standards – either indirectly, by looking at what industry has already installed (and thus what is cost-effective), or directly, when setting standards that go “above the floor” of what has already been achieved by the best performing plants in the industry.

The coalition defending the rule is extraordinarily broad:

• Lawyers for Massachusetts spoke on behalf of their own state and for Connecticut, Delaware, Illinois, Maryland, New York, North Carolina, Rhode Island, Vermont and the District of Columbia,.
• Calpine and Exelon gave a view from inside the industry, pointing out to the court that petitioners were trying to use the rule to game the system so that the dirtiest plants could remain dirty.
• EDF’s counsel, Sean Donahue, spoke on behalf of a broad coalition that included NAACP, American Lung Association, American Nurses Association, NRDC, Sierra Club, and host of other environmental and public health associations. (Click here for a list of the parties in both the Mercury case and the Cross-State case)

Each year, between 300,000 and 600,000 American children are born with methylmercury blood levels high enough to impact their brain development.

All fifty states in the U.S. have fish-consumption advisories because of mercury.

Many states cannot meet water quality advisories based on deposition of mercury from air pollution.

Many power companies have found implementing the rule to be cheaper and easier than expected.

Regulating mercury from power plants carries health benefits that may be up to ten times greater than the costs, and realizes a promise Congress made to Americans more than twenty years ago with the Clean Air Act amendments.

Let’s hope the D.C. Circuit agrees that getting mercury out of the air is one of the best gifts we can give our kids.