Let Loose the Defenders of Mercury Poisoning

If your neighborhood utility industry lobbyist looks a little more harried than usual, it’s because today, February 16th, is yet another reminder to power companies that they, like other industries, are finally going to have to clean up their mercury and toxic air pollution to protect America’s communities and children.

The EPA’s Mercury and Air Toxics Standards (MATS) for power plants were published in the Federal Register [pdf] today. While this event is ordinarily something that only interests lawyers and people with bizarre reading habits, today’s publication of the MATS is important for four reasons that deserve discussion:

First, Senator Jim Inhofe (R-OK) has announced that once the MATS are published in the Federal Register, he intends to file a resolution of disapproval under the Congressional Review Act (CRA). He aims to eliminate these health standards that reduce mercury and other toxic air pollution from power plants.

But a CRA resolution is the nuclear weapon of Congressional zealots that not only eradicate all of the health benefits of the MATS; due to a pernicious feature of the CRA, the resolution’s radioactive spillover also would bar EPA from issuing any standards to reduce power plants’ toxic air pollution that are substantially similar to MATS.

EPA projects [pdf] that starting in 2016, the Mercury and Air Toxics Standards every year will prevent:

  • up to 11,000 premature deaths;
  • nearly 5,000 heart attacks;
  • 130,000 asthma attacks;
  • 5,700 hospital and emergency room visits; and
  • 540,000 days when people miss work and school.

Senator Inhofe’s CRA resolution would guarantee this health toll would continue every year, unabated, with EPA stripped of the tools to address those hazards. Americans would be denied, indefinitely, the enormous health benefit from reducing 90% of the mercury and 88% of the acid gas pollution from power plants that burn coal and oil.

EPA’s Mercury and Air Toxics Standards for the first time set national limits on mercury, arsenic, lead, acid gases and other toxic air pollution from these power plants. Mercury is a dangerous neurotoxin that harms children’s developing brains and nervous systems, and power plants are the largest industrial source of mercury in the U.S.

These standards were finally issued more than a decade after deadlines Congress itself set – yet Senator Inhofe wants to abolish these standards and prevent meaningful replacement standards indefinitely. (Some of the Senators voting in 1990 to authorize these health standards for toxic air pollution from power plants include many Senators still in office, such as Mitch McConnell (R-KY), Chuck Grassley (R-IA), Richard Lugar (R-IN), John McCain (R-AZ) and Max Baucus (D-MT).)

Senator Inhofe offers no alternative legislation or proposal to protect pregnant women, children and fetuses from neurotoxins like mercury and lead. Instead, he would allow mercury and toxic air pollution from power plants to go unregulated, with known neurotoxins and carcinogens putting our communities’ health at risk.

The Senate voted down a similarly destructive and irresponsible CRA resolution offered by Senator Rand Paul (R-KY) in November that attempted to eliminate EPA’s Cross-State Air Pollution Rule. (Note how the most extreme conservatives in the Senate Republican caucus have been the authors of these harmful air pollution resolutions.) Almost every Democratic Senator and 6 Republican Senators voted against the resolution, which garnered only 41 supporters. This proved once again that neither Americans nor close to a majority of Senators want the dirty, polluter-friendly outcomes that these radical CRA resolutions would force the country to suffer.

As Senator Jay Rockefeller (D-WV) so aptly put it after voting against Senator’s Paul CRA along with 55 of his colleagues, “Businesses need certainty, and every time we kick the problem down the road we undermine new investment, create legal chaos and postpone a better future. After so many years of talk, our people deserve action to reduce air pollution. We must stand against resolutions like this one that score quick political points but do nothing to responsibly tackle the health and environmental issues that are holding us back.”

Businesses agree. The Inhofe CRA resolution unfairly penalizes utility companies that invested money to modernize their plants and clean up mercury and other toxic air pollution, while granting amnesty to the laggards that disregarded forthcoming laws and kept polluting and harming our children’s health. Many of the nation’s largest power companies have invested millions to prepare for these standards. Companies like PSEG have said that the MATS “provide much needed certainty to invest in capital-intensive projects such as power plants,” whereas delay “will only perpetuate uncertainty where clarity is needed.” Many power companies support these standards and our children’s health demands them.

Today’s Federal Register publication also triggers a second action – the start of the 60-day period [pdf, at 9306] for potential litigation over these standards in the U.S. Court of Appeals for the D.C. Circuit. Just as we saw with the Cross-State Rule, we expect an avalanche of lawsuits from the biggest and dirtiest utility companies, the companies that own coal fleets that are uncontrolled or woefully controlled despite being over fifty years old in many cases. These companies have operated their plants for decades and decades without having their toxic air pollution regulated. Now, after unjustly securing more than a decade of amnesty due to lobbying by these companies and lawbreaking by the Bush administration, these same companies refuse to protect our children from mercury and other dangerous and toxic pollution.

And today, before most of Washington awoke, the National Mining Association already was moving forward with its litigation plans [subscription required], announcing it will attack the safeguards in court today – being the first to take advantage of the opportunity to put our children’s health at greater risk.

Today’s publication in the Federal Register also heralds a third event – the clock starts ticking on the 60-day period to file administrative petitions for reconsideration with the Environmental Protection Agency, when petitioners may ask the agency to revisit parts of the standards that they contest. Like lawsuits, this is another method that industry lobbyists can and likely will employ to attack these life-saving standards.

But perhaps most importantly, publication in the Federal Register triggers one last event – 60 days after the rule is published, the legal “effective date” for EPA’s mercury and air toxics standards starts. Section 112 of the Clean Air Act allows existing power plants up to three years from this effective date to meet the pollution limits laid out in today’s rule. This three year timeframe is the same that applies to all other industries that are required to reduce their toxic air pollution.

However, in response to (overblown) industry concerns regarding reliability, EPA has made special accommodations for power plants in today’s standards. The agency emphasizes [pdf, at 9407] the “flexibility of permitting authorities to allow a fourth year for compliance” that “should be available in a broad range of situations” and will “address[] many of the concerns that have been raised.” EPA has said [pdf, at 9410] that the “fourth year should be broadly available.”

In addition to this fourth year, the agency has described [pdf, at 9411] a further one-year extension “pathway for reliability critical units  . . . to achieve compliance within an additional year. The result is that qualifying reliability critical units may come into compliance within up to 5 years.”

As such, today’s publication means that no existing power plants must meet the emission standards until, at the earliest April 16, 2015, and for facilities that need the extra time, EPA has said it will accommodate extensions up to 2017. EPA has gone to great lengths to accommodate power plants with these extensions of time, following over a decade of industry-supported delay.

So like a painful procedure that must be endured before medical relief is delivered, the American people will have to suffer polluting industry lawsuits, partisan political histrionics and legislative attacks. But the Mercury and Air Toxics Standards will deliver relief from brain poisons, carcinogens, acid gases and deadly soot pollution that dirty power plants have been forcing Americans to suffer for too long. Today thus provides another opportunity to thank the Obama administration for standing up for children’s health and putting an end to decades of dirty power plants’ toxic air pollution.