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Court strikes down EPA's plan on mercury

February 8, 2008
Associated Press

A federal appeals court said Friday the Bush administration ignored the law when it imposed less stringent requirements on power plants to reduce mercury pollution, which scientists fear could cause neurological problems in 60,000 newborns a year.

A three-judge panel unanimously struck down a mercury-control plan imposed by the Environmental Protection Agency three years ago. It established an emissions trading process in which some plants could avoid installing the best mercury control technology available by buying pollution credits.

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

Power plants are the biggest source of releases of mercury, which finds its way into the food supply, particularly fish. Mercury can damage developing brains of fetuses and very young children.

The court decision was the latest in a string of judicial rebukes of the Bush administration's environmental policies. The Supreme Court last year took the administration to task for not regulating greenhouse gases. Courts have also rejected administration attempts to overhaul federal forest policies and streamline fuel economy standards for small trucks.

The U.S. Court of Appeals for the District of Columbia Circuit said that the EPA violated the federal Clean Air Act when it scrapped a mercury-control policy established in December 2000 under the Clinton administration. Utilities were required to install the best available technology to capture mercury from power-plant smokestacks.

That policy was anticipated to capture more than 90 percent of mercury releases. The cap-and-trade approach imposed by the EPA in March 2005 envisioned capturing 70 percent of emissions by 2018.

The court held that the EPA failed to show that its new approach would not harm the environment or that emissions at all plants not "exceed a level which is adequate to protect public health with an ample margin of safety."

"This three-judge panel has done the world a favor and helped save lives," said Connecticut Attorney General Richard Blumenthal, whose state participated in the lawsuit.

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 but that "they ruled against the process."

But it was clear the agency now would have to re-examine its approach to capturing mercury from power plants. "Because of the court's action the U.S. now has no national regulation to cut mercury emissions from existing power plants," he said.

Environmentalists, hailing the decision as a victory for public health, predicted it will require the EPA to issue the more stringent emissions requirements that were proposed eight years ago.

"This means the EPA is going to have to go back and do a real job of regulating all the toxics coming out of these plants," said Earthjustice attorney James S. Pew, who argued the case on behalf of several environmental organizations. He said EPA "is now under a simple, legal obligation to get those overdue rules out."

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

Dan Riedinger, a spokesman for the Edison Electric Institute, an association of power companies, called the court decision "a major setback ... to establish clear mercury regulations for coal-burning power plants."

"Now EPA has to go back to the drawing board, pushing mercury regulations far off into the future," said Riedinger .

Mercury is a powerful neurotoxin. About 8 percent of U.S. women of childbearing age have enough mercury in their blood to cause concern for a future pregnancy. The National Academy of Sciences estimates that 60,000 newborns a year could be at risk of learning disabilities because of mercury their mothers absorbed during pregnancy.

"The mercury emitted by our nation's coal-fired power plants pose serious health risks for all Americans," said Georges Benjamin, executive director of the American Public Health Association. The association was among a number of public health groups, including the American Academy of Pediatrics, that filed papers in support of the states' lawsuit.

Joining New Jersey in the lawsuit were: California, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Mexico, New York, Pennsylvania, Rhode Island, Vermont and Wisconsin.

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