EPA Denied A Rehearing En Banc by DC Circuit Court of Appeals

The folks at Turtle Talk have a good posting on this denial. Excerpt follows;

Environmentalists, however, doubt that the government will appeal the ruling to the high court, but leave open the option that industry may. “I would be astounded if the Solicitor General’s office walked this dog up to the Supreme Court’s steps to soil those grounds. The utility industry on the other hand follows different public health practices,” John Walke, clean air director at the Natural Resources Defense Council, said in a May 20 statement.

The U.S. Court of Appeals for the District of Columbia Circuit May 20 denied EPA’s petition for a rehearing en banc of the Feb. 8 ruling in State of New Jersey, et al., v. EPA that struck down the agency’s rule to establish a cap-and-trade scheme for reducing mercury emissions. The court also rejected a March 24 request by the Utility Air Regulatory Group — which represents electric generating companies — for a full panel rehearing.

The full post can be read here.

Developing Story - DC Circuit Court Denies Rehearing The Case - As Far As They Are Concerned CAMR Is Dead

The news reports are a little sketchy right now but it appears the US Circuit Court of Appeals has told the DOJ that their appeal for an en banc rehearing of the CAMR decision on behalf of the EPA has been denied. I will get more details as they become available. This leaves the stubborn EPA only one last resort, The Supreme Court of the United States. It is that or get on with MACT. I think everyone involved, the courts, the power companies, the public, everyone would just as soon get it settled. MACT is not that bad and delay will only make it worse, as the delay over the last couple years has.

More to follow.

Senate Holds Hearings on Mercury Emissions - S. 2643 The Mercury Emissions Control Act Takes The Stage

Taken from Talk Radio News the following excerpt;

The Senate Environment and Public Works Committee held a hearing to discuss various pieces of legislation pertaining to the proliferation of mercury in the environment and in exports. Chairman Barbara Boxer (D-CA) could not be present, so Sen. Tom Carper conducted the hearing in her place. Carper said that “one in 17 women of childbearing age have mercury in their blood at levels that could pose a risk to their unborn children,” emphasizing that these groups are most at risk for health threats.

The senators discussed the merits of various mercury legislation including the Clean Air Mercury Rule (CAMR), which Carper said was “flawed” and “did not go far enough to protect the health of America’s vulnerable populations.” He advocated instead the Mercury Emissions Control Act, which “would require the U.S. Environmental Protection Agency to issue a new, stronger rule to control mercury emissions from power plants, as required by the Clean Air Act.”

And this from FedCenter.gov;

A bill to amend the Clean Air Act to require the Administrator of the Environmental Protection Agency to promulgate regulations to control hazardous air pollutant emissions from electric utility steam generating units; to the Committee on Environment and Public Works (Congressional Record: February 14, 2008 [Senate], Page S1054). Text of the Bill is available here.

Sierra Club Pushes MACT In Mother’s Day Campaign Against EGUs, While States “Pare Back” Resolutions On GHG and Mercury

The Club
The Sierra Club has initiated a coordinated push, just before Mother’s Day, to get all new coal fired EGU permits reviewed to take into account the vacated CAMR, the subsequent mandate, and the resulting MACT hammer required by Section 112 of the Clean Air Act. While the EPA and UARG have asked the DC Appeals Court to reconsider their earlier vacatur, it is unlikely that the ruling will be changed. All we are left with is another delay and the uncertainty that brings. But it seems inevitable that a mercury MACT will become law at some point soon and now is the time to insure new plants meet that standard. A pop from YubaNet.com on this subject;

Just days before Mother's Day, the Sierra Club today is launching a massive, multi-state effort to educate the public about the dangers of mercury pollution, and ensure that all new coal-fired power plants employ modern mercury pollution controls.
[…]
"We want to give moms across the country some peace of mind this Mother's Day," said Bruce Nilles, Director of the Sierra Club's National Coal Campaign. "That's why we're taking action today to ensure that these coal plants make every effort to keep their toxic mercury pollution out of our communities."

And some more excerpts from a Reuters article describing the Sierra Club actions follow;

The Sierra Club sent letters on Tuesday threatening to file suit to stop construction of eight coal-fired power plants in six states because, the environmental group claims, they violate the Clean Air Act.

"This is the first major ramification on the ground from the (Washington) D.C. circuit kicking out the Bush administration's rules in February," said Bruce Nilles, director of the Sierra Club's effort to stop coal power plants.

In February, a federal appeals court in Washington ruled that the U.S. Environmental Protection Agency violated the Clean Air Act in not setting mandatory cuts for mercury emissions of power plants.

The suits would be filed in the federal districts where the proposed power plants would be located, Nilles said. The suits would seek to require the plants to go back to state permitting agencies for new permits that meet the tougher emission standards, Nilles said.
[…]
About 30 coal-fired plants may be affected by the Sierra Club suits, Nilles said.
Owners of three plants under construction have already been notified of the intent to sue by the Sierra Club – Entergy […] for a plant in Louisiana, Peabody Energy […] for a plant in Kentucky, and Louisiana Generating, a unit of NRG Energy, […] for a plant in Louisiana.

Another eight letters were sent on Tuesday, for plants in Arizona, Georgia, Kentucky, North Carolina, Texas and Wyoming, the Sierra Club said. Among the plants involved are Duke Energy's […] Cliffside plant in North Carolina and Energy Future Holdings, formerly TXU Corp, for its proposed Oak Grove plant in Texas.

The Sierra Club said it is considering whether to send intent to sue letters to owners of a dozen more plants in Kentucky, Louisiana, Texas, Wyoming, Iowa, Massachusetts, Missouri, Nebraska, North Dakota, Pennsylvania and South Carolina.

The coordinated effort extended to other plants as well. Sierra Club joined up with GreenLaw and Friends of the Chattahoochie to begin the process to sue Dynegy and LS Power over their planned 1,200 megawatt Longleaf Energy Station in Georgia. From the Atlanta Business Chronicle the following excerpts;

Three environmental groups plan to sue Dynegy and LS Power over potential mercury emissions at the first coal-fired power plant to be built in 20 years in Georgia. Sierra Club, GreenLaw and Friends of the Chattahoochee said they plan to sue Houston-based Dynegy (NYSE: DYN) and East Brunswick, N.J.-based LS Power, claiming the companies' 1,200-megawatt Longleaf Energy Station near Columbus, Ga., would violate the Clean Air Act for alleged failure to have adequate controls on mercury emissions.
[…]
In January, Administrative Law Judge Stephanie Howells upheld the Georgia Environmental Protection Division's decision to issue an air pollution permit to Longleaf Energy Station. The environmental groups had argued the Dynegy did not adequately restrict health- threatening sulfur dioxide, nitrogen oxide, sulfuric acid mist and total particulate matter emissions.

On Tuesday, Sierra Club, Friends of the Chattahoochee and GreenLaw, reported that in another court action, they have challenged the air pollution permit. The case is now before Fulton County Superior Court Judge Thelma Wyatt Cummings Moore and is expected to be heard this summer.

The States

Meanwhile the states, left to their own to figure out how to move forward in a vacuum of mercury guidance from EPA held their Environmental Council of the States (ECOS) meeting in New Orleans in mid April. Without a definitive word from the Feds on either GHG legislation or mercury legislation the states were left to duke it out amongst themselves as to what they would resolve on these issues. I will focus my discussion on the mercury debate, while the GHG argument took on much the same tone.

There was little agreement on whether to approve the earlier resolution on mercury. Some highlights from the Subscription Only Inside EPA’s Clean Air Report follows;

… states also disputed a resolution that as originally written urged EPA to issue a maximum achievable control technology (MACT) standard for mercury, in light of the recent federal court ruling vacating EPA’s clean air mercury rule that would have established a cap-and-trade program rather than imposing technology mandates. Many observers say a so-called MACT hammer under Section 112 of the Clean Air Act now requires states to develop a plant-by-plant MACT standard in light of the court rejection of the trading rule.

The original resolution said EPA should develop a MACT standard that considers “the most stringent performance standards already adopted by the states.”

But Oklahoma’s (DEQ Director Steven) Thompson said, “It’s my understanding that under MACT EPA can consider the top 12 percent” of emissions control technologies, not necessarily only “the most stringent.” Ultimately, states agreed to change the language so that the final resolution says EPA should consider performance standards already adopted by states when developing the mercury MACT.

Nevertheless, the idea of using a resolution to call on the issuance of the MACT drew objections from a handful of states. Indiana’s (IDEM Commissioner Thomas) Easterly said the resolution is “premature” because the court has not yet responded to EPA’s request for a rehearing. A motion to table the resolution until ECOS’ annual meeting in September narrowly failed, by a vote of 16 – 17.

An overwhelming majority of states voted in favor of the watered-down final resolution that simply calls on EPA to consider state standards in setting a MACT, though at least three states verbally objected.

Speaking to Inside EPA after the resolution passed, EPA Office of Air & Radiation Principal Deputy Assistant Administrator Robert Meyers said the agency “will certainly look at them and we respect ECOS,” though he said that EPA views such resolutions mostly as “advisory statements.” – Anthony Lacey (Inside EPA Author)

This whole debate just shows how much the country needs leadership and decisions regarding mercury legislation. The power companies know its coming and MACT is not unreasonable by definition. It promotes already existing technology, which as I see it now, is much less expensive than other air pollution control devices already in existence.