Supreme Court denies industry petition for appeal of mercury rule

In yet another legal blow for the coal industry and a win for clean water and public health, the U.S. Supreme Court has declined to hear the coal industry’s appeal supporting the Bush Administration’s vacated Clean Air Mercury Rule. 

The Clean Air Mercury Rule was issued by the Bush EPA in 2005, and would have created a weak interstate mercury emissions trading program, rather than requiring individual power plants to install strict technology-based pollution controls.  The Bush Administration’s rule was challenged by several states and environmental groups, and ultimately rejected by the federal Court of Appeals in 2008 (New Jersey v. EPA).  According to the court, once the U.S. EPA listed coal-fired power plants as a source of hazardous mercury emissions under section 112(c) of the Clean Air Act (this was done by the Clinton administration in late 2000 just before turning the place over to Bush), the plain language of the Clean Air Act requires strict technology-based controls.  Instead, the Bush EPA tried using a weak trading system that would result in toxic hot-spots near coal-fired power plants. 

Mercury is a neurotoxin – meaning it causes neurological damage.  Mercury is of special concern to children and women of childbearing age due to its impact on babies in the womb.  In utero exposure to mercury, via contaminated fish eaten by the expectant mother, can impair thinking, memory, attention, language, and fine motor and visual spatial skills.  Similarly, children who eat mercury-contaminated fish are at risk for decreased brain function.  Mercury is also toxic to adults causing permanent damage to the brain, kidneys, and cardiovascular system.

Coal-fired power plants are the largest U.S. source of mercury emissions.  While the coal industry claims that its massive mercury emissions disperse into the atmosphere, a 2006 study published in Environmental Science & Technology of mercury deposition in Ohio concluded that local and regional coal combustion accounted for 70% of the mercury that comes into nearby waterbodies.  The mercury pollution from existing coal-fired power plants in Michigan already causes severe health problems for Michigan citizens.  There is currently a statewide mercury fish consumption advisory for all inland lakes that severely limits the amount of fish that people should consume without risking their health.

Now that the Supreme Court has rejected the coal industry’s attempt to revive the Bush Administration’s mercury rule, the EPA and states must go back to applying the “maximum achievable control technology” for mercury from coal-fired power plants as required by the Clean Air Act.  Environmental groups have raised this issue for the proposed coal plants in Michigan.  The proposed coal plants’ failure to meet this standard is one of many legal reasons why the state cannot allow the coal plants to be built.