The Mercury Fallout Continues

The AP's Joe Hebert has written a powerful article on a scandal emerging from EPA in the wake of the U.S. Court of Appeals for the D.C. Circuit unanimously overturning EPA's mercury rules for power plants.  The AP article appeared the day before a hard-hitting, dead-on editorial by the New York Times criticizing EPA for issuing so many illegal and harmful Clean Air Act rules under this administration. 

Hebert's article laid bare contradictions between what EPA represented to the Court about its mercury rule, and contrary actions by agency officials before and after those representations:

While arguing in court that states are free to enact tougher mercury controls from power plants, the Bush administration pressured dozens of states to accept a scheme that would let some plants evade cleaning up their pollution, government documents show.

The article goes on to discuss example after example in which internal EPA emails and state officials confirm that EPA mounted a relentless campaign to pressure states not to restrict mercury pollution trading in defiance of EPA's wishes, and not to adopt state rules more protective than the lax and languid EPA approach.  

In perhaps the most wan and non-responsive response from an EPA spokesperson this year -- which Hebert highlights as a stand-alone paragraph that reads like a punchline to a bad joke -- "An EPA official said the agency's job 'is not to pressure states.'"

Thanks for clearing that up, Mr. EPA Spokesman. We hope that's not the EPA's "job" -- so why was EPA doing it? Stay tuned as EPA predictably tries to deny it was pressuring states, contradicting numerous state officials and squirming uncomfortably when presented with the agency’s own emails.

So what did EPA represent to the Court in its legal brief in the lawsuit over the mercury rules?  EPA claimed that its mercury trading rule (CAMR) gave states the discretion to determine "how best to allocate emission allowances to particular sources in the State, to allocate fewer than all the allowances, and even to opt out of the trading program."  Addressing the approvability of state mercury programs that differed from EPA’s approach, EPA’s brief said: "the fact that a State chooses to submit a plan to EPA that allocates relatively fewer allowances, and therefore results in lower mercury emissions than is required by CAMR, is not a basis for disapproval of the plan by EPA."

Now here are some examples of internal EPA emails and letters in which EPA threatens disapproval of state mercury programs that depart from EPA’s preferred trading approach or restrict trading more than EPA wished.  (Incidentally, my friend Vickie Patton at Environmental Defense deserves tremendous credit for her foresight in seeking these documents from EPA under the Freedom of Information Act; her tenacity in waging a bruising fight with EPA over her FOIA request; and her expertise in analyzing the mountains of EPA documents and understanding their scandalous significance. She supplied the following examples.)

  • As Vickie correctly explains, Nevada’s mercury program has a “true up” provision that requires coal plants to “give back” mercury allowances that are in excess of actual real-world emissions. Now here are the EPA disapproval threats: “Last week, we re-confirmed with [EPA Clean Air Market Division] staff and management that because NV’s plan contains the give back provision, NV’s CAMR State Plan is not approvable.” March 1, 2007 Internal EPA Notes titled “NDEP CAMR TALKING POINTS.”  “‘True up’ issue is the deal breaker but don’t need to elaborate too much.”  April 20, 2007 Internal EPA notes on Nevada mercury program.

That last sentence is an especially nice touch – the “deal breaker” with the Nevada program was the restriction on allowances that EPA would tell the Court was allowed in its legal brief exactly two weeks later. But EPA didn’t “need to elaborate too much” about this because, well, it would be damning and uncomfortable to EPA for the truth to be revealed.

  • EPA’s disapproval threat to Colorado: “[I]t appears that the new provisions regarding Hg allocations in section III.B.2 are inconsistent with CAMR and with EPA’s model trading rule and so are not approvable.” March 28, 2007 email from EPA to Colorado.
  • EPA’s disapproval threat to Montana: “By requiring the sources in Montana first attempt to purchase allowances from sources within Montana, the program is placing restrictions on trading that EPA could not accept within the national cap-and-trade program.”  Feb. 21, 2006 email from EPA to Montana.
  • EPA's disapproval threat to Georgia: "EPA would disapprove Georgia’s CAMR State Plan on the grounds that the Georgia Mercury Trading Rule is intended to, and in fact does, create a trading restriction that limits the ability of Hg Budget units to transfer Hg allowances to Hg Budget units in Georgia for use in meeting the allowance-holding requirements of the EPA-administered Hg trading program.” Feb. 16, 2007 EPA comments to Georgia.

Following these EPA threats, Montana and Georgia conformed their stronger state programs to EPA's demands, Nevada and Colorado did not.

The American people deserve answers to the questions why EPA was coercing states to weaken or abandon stronger mercury cleanup rules, and why EPA was misrepresenting its actions in legal filings with federal courts. The public deserves accountability here. To paraphrase Bob Dylan, let's hope a hard rain's a-gonna fall.