A Year Later Our First Day In Court - Health Groups and States Appeals Finally Being Heard

As Hg-ATME reported almost a year ago, major health organizations challenged EPAs rules on mercury emissions. That challenge, joined now by as many as 14 States, several Tribes and numerous Environmental Groups is finally having its voices heard in Federal Appeals Court in Washington D.C. As reported by the PRNewswire - USNewswire and picked up by Forbes on Dec 6th;

Fourteen states and dozens of Native American tribes, public health and environmental groups, and organizations representing registered nurses and physicians appeared in the U.S. Court of Appeals for the District of Columbia today seeking to overturn Bush administration proposals that evade legally required cuts in mercury pollution from coal- and oil-fired power plants (Case No.: 05-1097). The broad coalition called for the complete reversal of a suite of Environmental Protection Agency rules, including the so-called "Clean Air Mercury Rule," which allows dangerously high levels of mercury pollution to persist under a weak cap-and-trade program that would not take full effect until well beyond 2020.
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The following joint statement can be attributed to the American Nurses Association; the American Public Health Association; Chesapeake Bay Foundation; Clean Air Task Force; Conservation Law Foundation; Earthjustice; Environment America (formerly US PIRG); Environmental Defense; National Wildlife Federation; Natural Resources Council of Maine; Natural Resources Defense Council; Ohio Environmental Council; Physicians for Social Responsibility; Sierra Club; and Waterkeeper Alliance:

"These rules are simply illegal. Despite mercury pollution's significant impacts on human health and the environment, EPA has ignored science, law and human health in allowing coal-fired power plants to churn out dangerous mercury levels. Rather than applying the toughest standards of the Clean Air Act, EPA has proposed an ineffective mercury trading scheme that delays implementation of modern pollution controls for years. EPA has created an illegal loophole for the power generating industry that allows for dangerous emissions of mercury and other toxic air pollutants now and into the future.

"Power plants spew 48 tons of mercury into the air each year, yet a mere 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 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.

"Congress recognized the importance of cleaning up the nation's polluting coal-fired power plants when it passed clean air protections, but the EPA has repeatedly failed to carry out the law and follow the science in protecting human health and the environment from mercury pollution. In this instance, EPA has finalized a plan first drafted by industry attorneys that violates the law and fails to protect human health. We are grateful to have had our day in court to demonstrate EPA's failure to adopt protective mercury emission standards for coal plants as required by law."

And the story was also picked up in USA Today where we get these excerpts;

A Bush administration plan to limit mercury emissions from coal-burning power plants is legal and should not be overturned, a government lawyer said in federal court Thursday.

But two of the three appellate court judges reviewing a lawsuit against the plan appeared skeptical of that argument from Justice Department attorney Eric Hostetler.
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The rule is being challenged by a coalition of environmental groups, 14 states and a number of Native American tribes. They argue that the EPA's plan violates the 1990 Clean Air Act and lets power plants continue emitting mercury in amounts that pose health hazards to humans and animals.

James Pew, an attorney for Earthjustice, called the rule "unlawful."

In 2000, during the Clinton administration, the EPA said coal-burning power plants should be required to use the most high-tech, effective emissions controls available (MACT) to reduce mercury emissions.

During the Bush administration, EPA officials reversed course, saying the original decision didn't account for reductions in mercury emissions that would occur as power plants installed controls aimed at other air pollutants. (What?)

"EPA is acting to correct a mistake," Hostetler said.

Judges David Tatel and Judith Rogers of the U.S. Court of Appeals for the District of Columbia questioned Hostetler closely on whether the EPA followed procedures outlined in Clean Air Act amendments passed 17 years ago by a Congress that was frustrated with the agency's slow pace.

"Just because an agency made a decision doesn't mean it's lawful," Tatel said.

It could be months before the appellate judges issue a decision on the lawsuit. If the judges overturn the EPA's emissions credits rule, the agency would have to adopt tougher regulations limiting mercury emissions from coal-burning power plants. That likely would lead to a legal challenge from the electric utility industry.

So this fight is far from over. But at least it is getting underway. I found some more interesting points on this suit from The Institute for Southern Studies;

The American Academy of Pediatrics, the American Public Health Association, the American Nurses Association and Physicians for Social Responsibility are going to court today to present their legal challenge to the Environmental Protection Agency's Clean Air Mercury Rule -- which despite its name actually exempts power plants from tough Clean Air Act requirements to control the harmful neurotoxin.

The groups -- which together represent more than 300,000 health professionals -- are being represented by the Southern Environmental Law Center. They are joining attorneys general from 14 states (though none in the South), a dozen national environmental groups and several Indian tribes that are also challenging the rule, which was released in May 2005.

"This challenge represents unprecedented legal action by these public health groups, an indication of how severe doctors, nurses and pediatricians and other health workers know the threat of mercury emissions to be," says SELC attorney John Suttles. "With this rule, the EPA not only ignored the requirements of the Clean Air Act, it also ignored the advice of thousands of health experts, choosing a clean up plan that does too little, too late to be protective of public health."

While Clean Air Act requirements would rid the nation of 90 percent of mercury emissions by the end of next year, CAMR would allow power plants to continue to emit much more mercury for much longer -- nearly 20 tons every year until 2025. At the same time, EPA would allow plants to use a cap-and-trade scheme where they could trade mercury pollution credits with other, less-polluting plants. That would create mercury "hot spots" that could lead to dangerous levels of human exposure.

Hg-ATME will continue to cover these proceedings, it is hard to imagine an outcome that would not support the plaintiffs here, but we have all been surprised before. This news broke earlier in December while I was busy with other matters, it deserved more immediate coverage by this outlet but all I can say is better late than never.