Three recent developments in the saga of efforts to regulate mercury emissions from coal-fired utilities are significant. Early last week, Michigan became the twenty-third state to require coal-fired utilities within its jurisdiction to reduce their mercury emissions. Michigan’s regulation requires these sources to cut mercury emissions by 90% by 2015. Then, on Thursday, the EPA reached a settlement with environmental groups who had sued the agency for failing to act to regulate mercury emissions. In the agreement (see NYTimes also), the EPA pledged to set standards for mercury and a number of other toxics by late 2011.
The EPA and Michigan announcements come on the heels of a Government Accountability Office (GAO) report released early this month indicating that coal-fired power plants across the nation have achieved substantial reductions in emissions of this toxic air pollutant. The GAO report, Clean Air Act: Mercury Control Technologies at Coal-Fired Power Plants Have Achieved Substantial Emissions Reductions, found that these sources were able to reduce mercury emissions by as much as 99% using currently available technologies. It found, moreover, that these reductions “have been achieved at a relatively low cost.”
But wait – didn’t we hear from the Bush Administration and the utilities that control technologies capable of reducing mercury emissions on this order were still years away from commercial viability? And that this reality warranted a federal regulation that sought only modest emissions reductions (70%) and delayed for years the date by which these reductions would be achieved? (The Bush Administration's regulation, never implemented, would have set the deadline for 2018 – although structural features of the program meant that actual reductions wouldn’t approach 70% until some time in the 2020s or even the 2030s).
What happened?
Among other things, what happened was that states and tribes tired of the Bush Administration’s efforts to thwart meaningful regulation of coal-fired utilities – the largest remaining category of mercury emitters within the United States. Mercury, they recognized, is a potent neurotoxin. Exposure to even small amounts of methylmercury in utero or during childhood can lead to irreversible neurological damage. Studies suggest that methylmercury may have other adverse impacts as well, including effects on the cardiovascular health of adult men and on the health of numerous non-human species. Mercury that is emitted to the air eventually bioaccumulates in fish as methylmercury; as a consequence, mercury contamination disproportionately affects many American Indian tribes, as well as other groups that depend on fish.
So when the EPA finally issued a regulation, the “Clean Air Mercury Rule” (CAMR), that enlisted a questionable interpretation of the Clean Air Act in support of a cap-and-trade program with the lenient caps and timelines outlined above, several states and tribes took EPA to task. The D.C. Circuit agreed with them and vacated the CAMR in New Jersey v. EPA. And, in the meantime, several states issued their own mercury regulations for coal-fired power plants. The specifics vary from state to state, but in every case the emissions reductions are substantial. New Jersey mandated 90% reductions by 2007. Massachusetts required 85% reductions by 2008 and 95 % reductions by 2012. Illinois required 90% reductions by 2009
Students of environmental regulatory policy have long known that ambitious standards can facilitate technological innovation. Innovation may be particularly likely where the relevant standards include a firm legislative timeline for compliance; where those who would manufacture and/or install the control technologies have a separate interest in doing so; and where at least some sources in the regulated industry may be somewhat “ahead of the curve” in efforts to reduce emissions. While each of these factors appear to have been present in the case of mercury emissions from coal-fired utilities, the EPA worked to undermine – rather than capitalize upon – them, ultimately ensuring that eight years of the Bush Administration came and went with zero progress on mercury regulation at the federal level. But, because many states stepped up and passed ambitious standards, we are seeing mercury emissions reductions. The technology, it turns out, could be fathomed. It is on the ground, in commercial application right now. And with a relatively small price tag.
So, as 2009 draws to a close, there is cause for optimism that, with the EPA back at the drawing board in the Obama Administration we will finally see meaningful federal regulation of mercury emissions from coal-fired utilities. We can expect, moreover, given the GAO’s findings regarding reductions already being achieved by such sources, that this regulation will reflect the technological advances in mercury control technologies. But there is cause for chagrin as well. As the GAO data appears to bear out, we needn’t have waited so long. When Congress amended the Clean Air Act in 1990, it recognized all of this. It directed the EPA, once it determined that regulating mercury from coal-fired utilities was “appropriate and necessary,” to issue technology- based standards keyed to the best performing sources in the category and to enforce a tight, three-year deadline for compliance. Congress, that is to say, structured the law in a way that enlisted several of the ingredients conductive to bringing about technological innovation. The pity is that the EPA, during the Bush Administration especially, managed so effectively to thwart this congressional directive – to the detriment of the thousands of children born in the intervening years with methylmercury in their cord blood at levels associated with permanent neurological damage.
Catherine O'Neill, CPR Member Scholar; Professor of Law, Seattle University School of Law. Bio.
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