Lawsuits over mercury

The EPA’s new mercury cap-and-trade rule is now officially—and predictably—under legal attack. On March 29th, one day after the rule was published in the Federal Register (PDF), nine states sued the EPA over its decision to take mercury emissions from power plants off the list of air toxins. (They did this so that they could regulate mercury using a cap-and-trade approach, which is forbidden for toxic chemicals under the Clean Air Act.)

The following day, a coalition of environmental groups petitioned the EPA to stay their decision and re-evaluate their position rather than go to court over the matter. However, the EPA’s top air-pollution official, Jeff Holmstead, has said repeatedly that the EPA believes the plan to be on solid legal ground (despite the plan’s major substantive shortcomings). This has led environmentalists such as John Walke, clean air director for the Natural Resources Defense Council, to believe the EPA will deny their request for a stay. Still, Walke says, the petition is a necessary step for addressing the issue in court.

In the meantime, environmentalists contend that without a stay, new plants will be built in anticipation of far weaker standards than the power industry has prepared for in the recent past. According to Walke, if court cases should ultimately decide that this new rule is in violation of the Clean Air Act, the power companies will “scream to high heaven” about having to readjust to the new standards.

Responding to the lawsuits, Senator James Inhofe (R-OK) criticized the nine states filing suits, claiming that they are holding up progress. In reality, though, the mercury rule isn’t likely to have any effect in the short term; nor is it likely to meet its ultimate target of a 70 percent reduction in mercury emissions by 2018. In fact, by the EPA’s own estimates, the target may not be reached until a decade later than that.

Although not advertised as such, the cap and trade program is a voluntary program which allows states to opt in or to opt out and draft their own program. Early indications are that if the current rule is adopted as written, many states will decide to go it alone, making the likelihood of a nationally coordinated emissions program highly unlikely. According to Walke, the states overwhelmingly agree that an effective national program would be far preferable to a patchwork of state programs, yet many are seriously dissatisfied with the federal government’s plan. He expects to see many more lawsuits in the weeks to come.