HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Tuesday, April 5, 2011

The Long Road to Regulate Mercury from Power Plants

With so much attention focused on the Environmental Protection Agency’s regulation of greenhouse gas emissions, a major development in reducing exposure to toxic air pollutants may have been overshadowed. Last month, the EPA issued a proposed rule on standards for mercury (Hg), arsenic and other toxic air pollution from power plants. These hazardous air pollutants (HAPs) have been shown to cause neurological damage, including lower IQ, in children exposed in the womb and during early development.

This is the culmination of a legal struggle that highlighted the divide between the Bush Administration and the administrations that preceded and followed it. In 2000, under Clinton, the EPA issued a finding that toxic emissions of Hg and other HAP from power plants made it both appropriate and necessary to adopt regulations. Under Bush, the finding was reversed, and a 2005 mercury rule was issued that set up a cap and trade arrangement.  A lawsuit was filed on behalf of nine states, and in New Jersey v. EPA, the DC Circuit vacated the 2005 rule and restored the 2000 rule. The 2011 rule was issued accompanying claims that it will prevent as many as 17,000 premature deaths and 11,000 heart attacks a year, among others.

Predictably there has been pushback from some members of Congress. Sen. Inhofe (R-OK) and Sen. Mike Johanns (R-Neb.) introduced the Comprehensive Assessment of Rules on the Economy (CARE) bill that would require an interagency federal panel to undertake a “cumulative economic analysis” of EPA regulations. This would delay the promulgation, and depending on who calculates costs and benefits, possibly undermine the rule.


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