I Told You So

It is fun being the Supreme Court. It was not difficult to forecast the ruling in the case Utility Air Regulatory Croup vs. New Jersey, 08-352. The groundwork on which it laid was quicksand at best. The idea of delisting EGUs from HAPs concerns and ultimately trading toxic mercury credits was absurd from the beginning. It is a shame it has wasted almost 5 years of the country's time, as well as deferred important decision making by responsible utilities to curb these hazardous emissions. It appears we will now move unfettered into rule making on this subject, but it will probably take a year or more to get final resolution. It was delay, delay from the beginning, we should delay no longer.

An article from CNN Money follows with details;

US Supreme Court Won't Hear Power Plant Case

WASHINGTON -(Dow Jones)- The U.S. Supreme Court on Monday rejected a bid by a group of utility companies and industry trade groups to save certain Bush administration regulations on power plants.

The high court's move was not a surprise because the Obama administration recently abandoned the federal government's Supreme Court appeal in the same case. Lawyers for the new administration instead said the Environmental Protection Agency would abide by a lower court ruling that threw out a Bush-era EPA rule that sought to "delist" mercury from a list of pollutants the agency is required to control at each power plant.

The Bush administration plan sought to create an emissions trading market under which power plants, starting in 2010, would have to buy pollution credits instead of actually cutting mercury emissions.

Coal-burning utilities such as American Electric Power Co. (AEP), Southern Co. (SO), and Duke Energy Corp. (DUK) had lobbied for the plan so they would have the flexibility to decide how to produce the cheapest mercury reductions. To create the market, the EPA had to reverse a Clinton administration finding that mercury pollution from coal-burning power plants is a "hazardous air pollutant" under the Clean Air Act.

The U.S. Court of Appeals for the District of the Columbia Circuit threw out the Bush administration's plan in February, 2008.

The Supreme Court on Monday let that ruling stand without comment.

The case is Utility Air Regulatory Group v. New Jersey, 08-352.

-By Brent Kendall, Dow Jones Newswires; 202-862-9222; brent.kendall@ dowjones.com

"The time for action on (mercury) pollution is now." - UNEP chief Achim Steiner

There has been years of talk, the time for action has come. When the US reversed course earlier this week and supported a global treaty on mercury emissions, a window of opportunity was opened and it appears that 140+ nations are ready to jump through.

The following is an AP article released earlier today. There is a much more detailed summary of what took place today in Nairobi today on the UNEP site here.

States agree to mercury treaty talks

NAIROBI (AFP) — More than 140 countries agreed Friday to launch negotiations establishing a treaty on mercury to limit pollution affecting millions of people across the world, the UN environment body said.

They also agreed an interim plan to curb pollution while awaiting the treaty because "the risk to human health was so significant that accelerated action... is needed," the United Nations Environment Programme (UNEP) said in a statement.

"Today we are united on the need for a legally binding instrument and immediate action towards a transition to a low-mercury world," UNEP chief Achim Steiner said at the end of the body's governing council meeting in Nairobi.

He added that world ministers who attended the week-long meeting "decided the time for talking was over. The time for action on this pollution is now."

The interim plan includes boosting countries' efforts on safe stockpiling of mercury, reducing supply and use among artisanal miners as well as reducing mercury in products such as thermometers.

Mercury is a heavy metal whose highly toxic compounds -- propagated notably by the production of coal, certain kinds of plastics and improper disposal of fluorescent light bulbs -- poison millions of people worldwide.

Fish-eating is the prime source of exposure among humans. The effects of mercury ingestion include damage to the brain, kidney and lungs.

It feels good to be viewed as a global leader again. Although in this case 140+ nations had to drag us along until we finally changed our own leadership. But let's stop talking and start acting.

Still On Life Support? No! CAMR Is Dead, Let It Go Already

I have declared the death of CAMR a couple times during the last year, most recently in a Dec 4 post. I acknowledged the Obama administrations withdrawal of the Bush EPA's motion earlier this month and did not declare CAMR's death again specifically at that time because I was getting tired of doing so. But now, should I have to acknowledge reports of a faint pulse somewhere deep in the imaginations of some utility die hards? No!

I will make it easy for the Supreme Court of the United States; Its over! The recent petition from the UARG should not be heard. Even if the DC Circuit Court ruling last Feb 8th had some errors in it, which all rulings probably do, it was ruling on an illegal rule in the first place. Go back to its inception, the CAMR was illegal. You can't delist EGUs haphazardly and you can't cap-and-trade a toxin. So forget it!

A posting by Lyle Denniston from the SCOTUS Blog follows;

Move to keep mercury pollution case alive

A group of electric utility companies and industry trade groups has urged the Supreme Court to go ahead and review a major mercury air pollution case even though the federal government no longer favors that review. In a letter filed with the Court Feb. 12, the Utility Air Regulatory Group contended that its pending case would not be affected even if the separate government case is dismissed.

The two petitions — Utility Air Regulatory Group v. New Jersey, et al., (08-352), and Environmental Protection Agency v. New Jersey, et al. (08-512) — were filed last fall, urging the Justices to overturn a D.C. Circuit Court decision on EPA’s duties in reducing mercury emissions from power plants. Both contended that the Circuit Court was wrong in limiting EPA’s authority to remove power plants from a list of sources that must have their mercury emissions reduced to the maximum extent. EPA had not taken the steps that the Circuit Court said it must before de-listing power plants from that category.

On Feb. 6, the new Obama Administration asked the Court to dismiss EPA’s petition, indicating that it would make the findings that the Circuit Court said it must. (A post discussing the motion to dismiss can be read here; the post includes a link to that motion.)

The alliance of power companies and trade groups had already prepared its reply brief in its case before the EPA made its move for dismissal. It subsequently filed its views in a letter to the Clerk, arguing that dismissal of 08-512 “would not in any way moot the petition filed by UARG.”

It noted that the EPA had previously argued that the Circuit Court ruling contained “fundamental legal errors” that would raise “substantial practical harms.” The change of mind by the new Administration, it added, would deprive the EPA of “an important regulatory tool” under the Clean Air Act.

The government, in urging dismissal of its case, mentioned the utility group’s separate case, but made no recommendation to the Court on what should be done with that petition.

Where Bush Ignored The Problem, Obama Team Plans On Leading Global Fight Against Mercury

In a complete turnaround of US policy.

Some excerpts from an AP article, and the AP photo by K. Senosi.

Daniel Reifsnyder, the deputy assistant secretary of state for environment and sustainable development, told a gathering of global environmental ministers in Nairobi, Kenya, that the US wants negotiations on limiting mercury to begin this year and conclude within three.

"We're prepared to help lead in developing a globally legally binding instrument," he said. "It is clear mercury is the most important global chemical issue facing us today that calls for immediate action."

The statement represented a "a 180-degree turnaround" from policy under the Bush administration, said Michael Bender, co-coordinator of the Zero Mercury Working Group, a global coalition of 75 environmental organizations working to reduce mercury exposure.

"The change is like night and day. The Bush administration opposed any international legal agreements on mercury and President (Barack) Obama is in office less than one month and is already supporting a global agreement," he said.

Bender said his group has had more discussions over mercury control in the past two weeks than they have in the last eight years and that the U.S. government included many of their ideas in the proposal they are presented in Nairobi.
[...]
A U.S.-drafted proposal obtained by The Associated Press would form a negotiating committee in conjunction with the U.N. environment program to help countries reduce their mercury use, clean up contaminated sites and find environmentally sound ways to store mercury. The European Union has already banned mercury exports starting in 2011. The U.S. has a similar ban that will be effective 2013, legislation that was sponsored by Obama when he was a U.S. senator.

Advocacy groups that have been working on getting such a global pact passed welcomed the U.S. policy change, saying it could encourage other countries such as Canada to make a similar change. Bender said mercury levels in the world had increased two to three times over the past 200 years.

"Given that the United States has pushed the door of resistance in a sense, that will lead others to follow," said Susan Egan Keane of the Washington, D.C.-based Natural Resources Defense Council.

It is actions like these that make me proud to have supported the change we Americans have initiated. It is actions like the ones in the other post today that remind me we have a long way to go.

There is another good article on this subject from Environment News Service here. Change is a coming.

Idaho Board of Environmental Quality Folds Under Industry Pressure

In a state that doesn't even have a single coal fired EGU, the Idaho Board of Environmental Quality caved in to an industry lead attack on its request for a voluntary program for mercury emission reductions. Idaho, a state that pushed hard to get neighboring Nevada to control mercury emissions from their gold mining operations, can't find the backbone internally to support a voluntary program. Seems sort of strange to me.

A reprint from an Idaho Statesman article quoting a post by blogger Rocky Barker follows;

In a cloud of uncertainty, the Idaho Board of Environmental Quality backed off its efforts to strengthen rules to regulate industries that emit mercury into the air.

The board voted down a motion Feb. 12 that would have asked industries to voluntarily (emphasis added) install the best available technology for removing mercury from their smokestacks under a well-coordinated lobbying effort by the Idaho Association of Industry and Commerce, the Idaho Council on Industry and Environment and Monsanto Corp., whose P4 phosphate plant in Caribou County in Southeast Idaho is the state's largest mercury source.

The industry groups rolled over the Idaho Conservation League, which had petitioned to get the board to regulate mercury in the state in an effort to combat the pollutant that accumulates in fish and can cause brain damage and learning disabilities in babies and young children. The ICL and its program manager Justin Hayes had successfully led the effort to get the state of Nevada to require gold mines in that neighboring state to restrict much higher mercury emissions after studies showed that winds were carrying the neurotoxin into Idaho and that at least one reservoir, Salmon Falls Creek south of Twin Falls, had high mercury levels.

Hayes had convinced federal and Nevada officials that their voluntary program was allowing miners to pump thousands of pounds of mercury into the air. Today, Nevada has one of the strongest mercury abatement programs for mines in the world.

But the case for regulation was not as clear in Idaho, and the industry groups were far more sophisticated about exploiting the uncertainty in the science.

They hired one of the world's top mercury pollution experts, Steve Lindberg, a retired environmental chemist from Oak Ridge National Laboratory in Tennessee. He has helped develop mercury rules for states and the EPA and has worked on both sides of the issue throughout his career.

He said in a report and a presentation to the board that the science linking a source like the P4 plant to high mercury levels in fish in nearby reservoirs was not yet clear enough. He raised questions about whether atmospheric mercury pollution was as serious a problem in the American West as it is in the East, where there is more rain and more wet deposition of the pollutant.

And he even raised doubts, based on yet unpublished research, that the high mercury levels in Salmon Falls Creek Reservoir were linked to the massive mercury pollution that had come from the mines in Nevada before they were regulated.

Previously, the board had heard from U.S. Environmental Protection Agency experts that models showed a source like the P4 plant could be linked to the elevated mercury levels in nearby lakes. But even Hayes acknowledged that science was not yet clear.

He urged the board to put in place regulations that would limit mercury pollution, especially in new sources. The current regulations are aimed at keeping mercury inhalation by workers and people near a plant low. But they allow a company to emit huge levels of mercury, as much as 100,000 pounds, which all agree would be harmful to the state's aquatic systems.

But the P4's emissions, at 600-700 pounds, are far below such numbers. They still are higher than coal-fired power plants. Its officials say they have erred on the high side of their estimates because EPA reporting requirements have high penalties for reporting below actual emissions.

And Monsanto says its scrubbers for other pollutants have reduced mercury emissions. It proposed that the state use water quality regulations to control mercury levels in lakes instead of air regulations.

"This confusion and uncertainty makes it hard for us to make rules," said Nick Purdy, a board member from Picabo.

So the state's flawed rules - even by Lindberg's opinion - stay in place for now.

It is situations like this where local industry groups fight a local regulation because they can shed doubt on its local effects that scream for Federal action. No one denies that mercury emissions, like the 600 - 700 pounds per year coming from the Monsanto plant are adding to the global problem of mercury emissions; they simply say our emissions aren't necessarily effecting our waters and thus our citizens, so we should not regulate them. Damn everybody downwind, and oh, by the way, let's get tough with everybody upwind of us and get them to regulate, but not us. What a joke.

Feds Action Signals National Effort; Meanwhile States Struggle In The Void

The Obama administration took official steps to withdraw a motion made by the outgoing Bush administration for the Supreme Court to re-reverse the Court of Appeals ruling on the CAMR. This is no big surprise as Obama has long been a strong voice against mercury in our environment and its effects on public health. The interesting story here is while the Feds move, and move slowly, as only the Feds can do, States such as Pennsylvania and Kansas are left to grapple this issue out in their courts and legislatures.

From my perspective all this is crying for national leadership, and hopefully Obama can deliver. The Pennsylvania scuffle would be moot if the State hadn't been forced into dealing locally with a problem that was poorly dealt with nationally. The Bush CAMR was illegal from its inception and public health caring states were forced to act on their own. Now since the Federal CAMR was vacated last February, state rules are being tied, rightfully or not (and NOT in my mind), to a vacated rule. Ultimately leaving citizens unprotected, even in states who intended to protect them.

And, I am not a lawyer but this Kansas fiasco appears more onerous to me. From the sounds of it, even if a Federal law is passed the KDHE would have to fight county by county to enforce it. That can't be right, but its what it sounds like in Ms. Sethi's (Kansas) article, excerpts below.

Let's stop all the delay tactics and stop all the partisanship and get down to making rules that protect our citizens, all of them, with sound legislation based of the Clean Air Act and all of its intentions, as delivered from the US Congress and signed into law. It sounds easy enough to me, but then I am not a lawyer.

I'll put up a little info from the Fed action and then some from the battles in Pennsylvania and Kansas that seem to be dominating the mercury headlines lately.

Federal Action
From the AP.

WASHINGTON (AP) — President Barack Obama is reversing a previous Bush administration effort on pollution, pulling back legal arguments in a lawsuit over mercury.

The case was soon to come before the Supreme Court. The Obama administration submitted papers Friday to the court asking for the appeal to be dismissed.

An appeals court last year rejected a Bush administration plan for regulating mercury emissions. It said the plan should not have included allowing utilities to purchase emission credits instead of actually reducing emissions.

Scientists fear mercury pollution leads to neurological problems in infants.

The power industry still has a separate petition challenging the appeals court ruling, which is unaffected by the Obama administration's action.

More from Bloomberg.com

The Obama administration withdrew a U.S. Supreme Court appeal filed by the Bush administration and said it will comply with a court ruling governing mercury emissions from coal- and oil-fired power plants.

A federal appeals court last year ruled that the Environmental Protection Agency erred when it decided to change the way it regulates those emissions. The agency had planned to remove plants from a list of polluters regulated under one section of the Clean Air Act and instead establish a “cap and trade” program.

“EPA has decided, consistent with the court of appeals’ ruling, to develop appropriate standards to regulate power plant emissions,” Acting Solicitor General Edwin Kneedler said in a court filing released today.
[...]
EPA Administrator Lisa Jackson said the agency’s decision will promote environmental regulation. “We are probably better off spending all of our resources making rules that will stick instead of fighting the courts,” she told reporters following an appearance at a conference in Washington.

Hopefully they will move on a national mercury rule soon.

Pennsylvania
Late last week a Commonwealth Judge in Pennsylvania, Dan Pellegrini ruled that the States mercury actions were unlawful, invalid, and unenforceable, and for all intents and purposes he tossed them out. An excerpt or two from the Pittsburgh Post Gazzette follow;

Commonwealth Court Judge Dan Pellegrini ruled Friday that the rule is unlawful, invalid and unenforceable, but the state Department of Environmental Protection has received legal approval from the state Office of General Counsel to file an appeal.
[...]
Pennsylvania's mercury rule was developed in 2006 after the U.S. Environmental Protection Agency proposed weakening federal mercury regulations. It requires the state's 34 coal-fired power plants to reduce mercury emissions 80 percent by 2010 and 90 percent by 2015 from 1999 emissions levels. It also prohibits mercury emissions "trading" that would allow older power plants to avoid installing expensive control equipment.

"Pennsylvania's mercury rule is the most effective and timely way to reduce mercury exposure," said Acting DEP Secretary John Hanger. "The ruling makes Pennsylvania's economy less competitive in the long run."

The federal rule, which itself was thrown out by the U.S. Court of Appeals for the D.C. Circuit last February, allowed the trading of mercury emissions credits and would have reduced mercury emissions 70 percent by 2018.

The Pennsylvania rule was challenged by Allentown-based PPL Corp., which has several coal-fired power plants in the state. The company argued that Pennsylvania cannot enforce its mercury rule because it is based on the federal mercury rule that was overturned last year.

Some more details, including link to station audio from the WHYY site are below;

A Pennsylvania judge shot down the state’s effort to reduce mercury emissions from coal-fired power plants. But the environmental department says the fight isn’t over. From WHYY’s health and science desk, Kerry Grens reports.
[...]
Transcript:
Pennsylvania’s emissions rule would reduce mercury pollution 90 percent by 2015.

Currently, the federal government does not have a reduction plan in place, but the judge ruled that the state could not pre-empt the EPA.

Energy company PPL filed the lawsuit.

George Lewis, PPL’s spokesperson, says the company has already spent more than a billion dollars on reducing mercury emissions.

Lewis:
Allowing Pennsylvania to implement its rule would have required PPL to spend millions of additional dollars on mercury control technology that may not have been acceptable under new EPA regulations that are forthcoming.

Lewis says if those new federal rules require the company to take action similar to the Pennsylvania rule, the company would comply.

DEP spokesperson Teresa Candori says the agency is disappointed by the judge’s ruling.

Candori:
Currently we are reviewing our legal options.

Candori says the Department will decide in the next few days whether to appeal the decision.

And of course a couple days later news of the States appeal of the Commonwealth Judges ruling was announced. From PRNewswire.com

Environmental Protection acting Secretary John Hanger said today the commonwealth has filed an appeal with the Pennsylvania Supreme Court seeking to overturn a recent state court opinion that declared Pennsylvania's Mercury Rule "unlawful, invalid and unenforceable."
[...]
"The Pennsylvania Mercury Rule is a well-crafted, cost-effective program designed to protect our citizens from exposure to mercury emitted by coal-fired power plants," said Hanger. "Our rule accelerates adoption of proven technologies that would protect public health and the environment."

Kansas

In what is becoming one of the hottest battles around, the Kansas legislature is trying to rewrite the laws, stripping the Dept. of Health and the Environment, and its Health Secretary, Bob Bremby, of their power to regulate industry (deny permits) based on air quality and public health concerns.

Even with upwards of 70% of the citezenry in favor of halting construction of 2 large coal burning plants at Sunflower Electric's Holcomb plant, or at least pursuing alternative energy options first, this conservative lead attempt shields it supporters from actually looking like they are for the construction permits to be allowed. This is some pretty slick legislation and there is a wonderful article by Simran Sethi on Huffington Post all about it. Some excerpts follow, but I recommend a more thorough reading of her post if you are interested in this particular showdown.

On October 18, 2007, Kansas made history. Health and Environmental Secretary Roderick Bremby made the landmark decision to deny permits for two new 700 MW coal-fired power plants proposed by Sunflower Electric, on the grounds that carbon emissions from the plants would negatively impact health. "After careful consideration of my responsibility to protect the public health and environment from actual, threatened or potential harm from air pollution, I have decided to deny the Sunflower Electric Power Corporation application for an air quality permit," Bremby said in the official press statement.

Let's be clear, this decision was a game-changer. In his ruling, Bremby stated it would be "irresponsible" to ignore the impacts of carbon dioxide and other greenhouse gases on global warming. It was the first time that climate change was cited in such a context, setting a precedent for other decisions of its kind across the nation. In response, Sunflower proposed three bills to the state legislature in 2008 that would have allowed the plants to be built, but all three were vetoed by Governor Kathleen Sebelius. Now, with the state legislature back in session, Sunflower is continuing their fight to expand the reach of big coal.
[...]
Just 5 weeks into the legislative session, Sunflower has already flooded the state Energy and Utilities Committee with over 40 "energy policy" bills. Though discussions of renewable energy have been included, most fail to take advantage of the state's renewable resources (Kansas is ranked 3rd in the US for greatest wind potential), and instead contain measures that would allow for the expansion of coal, including Sunflower's proposed plants in Holcomb.
[...]
This week, the Kansas legislature is debating Bill 2182. While the bill makes no mention of Sunflower Electric, carbon emissions, or the Holcomb coal plants, it would effectively strip Health Secretary Rob Bremby and the Department of Health and the Environment of their power to regulate industry based on air quality concerns, and therefore force them to grant the permits to Sunflower.

Because of high disapproval rates around the building of new plants, the predominantly Republican legislature has been wary of casting a strictly pro-coal vote. But according to Scott Allegrucci of the Great Plains Alliance for Clean Energy (GPACE), Bill 2182 "is cleverly written to allow some legislators who sustained the 2008 vetoes to vote for the coal plants this time, while giving them the ability to tell their constituents that they only voted for 'regulatory certainty,' not coal plants." In Wednesday's discussion of the bill, proponent Amy Blankenbiller of the Kansas Chamber of Commerce stated, "We are not here today to talk about environmental regulation, but to talk about due process, regulatory process."

Call it "due process" if you want, but the truth is that the bill's environmental repercussions are huge. What would it mean for Kansas if the bill is passed? Scott Allegrucci says, "It would certainly force the Holcomb plants to be given air quality permits; it would force KDHE to file action in local courts county-by-county if it wished to enforce federal Clean Air Act findings or rulings; and it would certainly open Kansas to future attempts by ANY polluting industry that wished to secure air quality permits and could afford to buy enough advertising or enough legislative votes to get their way."

And the rest of the nation would lose the first real stand of public heath officials and government against one of the nation's most polluting industries. Whether you live in New York or Nebraska, this ruling will either allow or limit your own state's ability to protect your health. You can follow the legislature's discussion at the Climate and Energy Project's blog, and on Twitter. To support the cause, shoot a friendly email to Lisa Jackson at the EPA, and let her know that Americans across the nation recognize the importance of this case.

Climate change is boundless. Whatever's the matter with Kansas will hit you, too.

Claims of Mercury In High Fructose Corn Syrup May Be Overstated; At Least Premature

I was posting on the chlor-alkali industry the other day and added an update that appeared in the literature that same day. I jumped on and added the bit about mercury found in HFCS without noting the research was preliminary and not up to scientific standards. I found a rebuttal post on another site, by Karl Haro von Mogel, on The Inoculated Mind, that I thought deserved to be aired.

I don't take back my contention that using mercury in chlor-alkali plants should be stoppped immediately (not just phased out), but I do want to give science its rightly place in the sunshine. So a couple excerpts from The Inoculated Mind follow;

In science you always.

Always.

Always use controls.

That is the very basis of science, for without a control running next to your experiment, you have no isolated variables, no conclusions that can be drawn from it, and no theories that it can support.

So when I was reading the Ethicurean, as I regularly do, I was simply flabbergasted at this post: Mercury in HFCS. Apparently, a research paper came out proclaiming that high fructose corn syrup (HFCS)-containing products had detectable levels of mercury. The explanation given was that HFCS is made using alkali soda, from plants that use mercury in the process of synthesizing it. (Except this has been for the most part phased out)

I took a look at the paper, and the first thing that I noticed was that it was not a peer-reviewed study. So this has not passed through the rigors of experimentation, review, re-testing if needed, and publication in a scientific journal.
[...]
The second thing I noticed was that the paper was mostly an argument about how unhealthy the American Diet is, and the big calorie baddie is HFCS.
[...]
The ’study’ itself consisted of taking samples of foods that contain high-fructose corn syrup and testing them for levels of mercury. Those foods and the brands that made them were in the report, and they found that some of the foods had detectable levels of mercury in them. What levels? Parts per trillion. These are really low levels. Drinking water has a limit of 2 parts per billion, which means that you can have 100 times as much mercury in drinking water as is in these foods. The tap water you use to make your oatmeal might have more mercury than the oatmeal itself.

Their conclusion was that the mercury came from HFCS, and made a list of recommendations about what should be done about this sciency conclusion. But wait, did they actually prove that the mercury came from the corn syrup?

No. In order to demonstrate this scientifically, you have to have controls. There’s no telling where the mercury came from without isolating the variables. Were the oats sucking up mercury in the soil? Were the cows that produced the chocolate milk they tested the actual source of the highest mercury levels they found in their survey?

The article goes on pressing the issue of not reporting unsubstantiated claims as science. It calls this practice "...Science By Press Release", of which in this case I was found guilty.

But Karl goes on to say;

For the record, I’m a big fan of Green Chemistry - changing industrial chemical processes to be more environmentally-friendly. If there are chlor-alkali plants that still use mercury somewhere, they should change their methods of synthesizing it, at least because it will reduce demand for mercury, and eliminate the concomitant emissions. But instant sweetened Oatmeal is not the right rallying cry. It reminds me of when Steven Milloy claimed that Fluorescent Replacement lights were toxic superfund-sites-in-the-home waiting to happen. Same deal, different politics.