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.