Toxic mercury pollution limits survive major court challenge

(This post was co-authored by Pamela Campos, Attorney, and Mandy Warner, Climate & Air Policy Specialist)

Some environmental threats are hard to explain. Toxic mercury is not. A dangerous neurotoxin that threatens young children, developing babies, and others, almost everyone reacts viscerally at the idea of ingesting it. And the scientific evidence endorses that instinctive response.

That’s why today’s decision by a federal court to uphold the EPA’s Mercury and Air Toxics rule is cause for celebration. For decades, power plants have been spewing out mercury. It ends up in our lakes and rivers, in fish, and ultimately in our bodies. It’s been closing favorite fishing holes and, more ominously, delaying mental development for our children. Even spiders in the Sonoran desert and trout in Colorado’s highest mountain lakes are affected.

When the EPA finally issued rules under the Clean Air Act to limit mercury pollution, the owners of the dirtiest power plants sued to stop it. Just like with every other major air pollution rule, they claimed it would be unaffordable, ignoring clear evidence that clean air protections are consistently shown to have public health benefits that far exceed the pollution control costs.

So this morning’s decision is a big deal for protecting our health. The court was sweeping in its denial of industry challenges, confirming that EPA’s technical and legal judgment was sound.

While some power companies are investing in lawyers and lobbyists to obstruct these vital health protections, other power companies are investing in clean air solutions. The reality on the ground shows that many power companies are already complying with the rule. Compliance costs fall as new standards are implemented. The health benefits of preventing exposure to toxic pollution are lifelong.

While some opponents claimed it would not be possible to install controls before the rule took effect, but as of the end of 2012, the Energy Information Administration recently reported that 70% of coal-fired capacity already meets the *standards.

Power companies such as American Electric Power, Southern Company and First Energy that fought EPA’s clean air protections claimed the costs would be too high to make pollution reductions. EPA Administrator Lisa Jackson announced the final Mercury and Air Toxics Standards on December 21, 2011 at Children’s Hospital in Washington, D.C. Within months of EPA’s announcement, these same power companies were adjusting their cost estimates downward and touting to investors that the compliance costs with the historic Mercury and Air Toxics Standards were plummeting:

  • On July 20, 2012 American Electric Power CEO Nicholas Akins confirmed that the company’s projected costs have come down nearly 25% from what AEP originally projected. He added, “[W]e expect it to continue to be refined as we go forward”. In other words, costs will come down even further. (Nicholas Akins, American Electric Power Co., Inc. Q2 2012 Earnings Call transcript, July 20, 2012).
  • On May 15, 2012 Southern Company CEO Thomas Fanning stated that the amount the company projects for compliance costs “could be $0.5 billion to $1 billion less, because of the new flexibility that [the company has] found in the final rules of the MATS regulation.” (Thomas Fanning, CEO of Southern Company, Deutsche Bank Clean Tech, Utilities and Power Conference, May 15, 2012).
  • On August 8, 2012, First Energy CEO Anthony Alexander stated, “[W]e have significantly reduced our projected capital investment related to MATS compliance.” (Anthony Alexander, Q2 2012 Earnings Call (transcript) August 8, 2012).

We examined this again and companies like AEP and FirstEnergy continue to lower compliance cost estimates downward from the claims they asserted during the mercury and air toxics rulemaking with AEP lowering its costs estimates by half and FirstEnergy lowering cost estimates by nearly 70 percent.

The Mercury and Air Toxics Standards provide crucial emission reductions of toxic pollutants including mercury, acid gases, sulfur dioxide, and chromium from the single largest source of toxic air pollution in the U.S. – coal-fired power plants. These standards will save thousands of lives every year, prevent heart attacks and asthma attacks, and help protect the hundreds of thousands of babies born in America every year who are exposed to unsafe levels of mercury in the womb. While the costs of compliance have plummeted from the public debate during the development of the standards, these vital health protections for our communities and families are enduring.

The court’s decision today demonstrates that EPA’s rule was carefully developed, and we can all rest more easily tonight knowing that we breathe cleaner air.

*Energy Information Administration,

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