Feds stop state efforts to slash mercury pollution
Associated Press
February 15, 2008
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.
A week ago, a federal appeals court struck down that industry-friendly approach for mercury reduction. It allowed plants with excessive smokestack emissions to buy pollution rights from other plants that foul the air less.
Internal Environmental Protection Agency documents and e-mails, obtained by the advocacy group Environmental Defense, show attempts over the past two years to blunt state efforts to make their plants drastically reduce mercury pollution instead of trading for credits that would let them continue it.
An EPA official said the agency's job "is not to pressure states."
The federal plan capped overall mercury releases from power plants nationwide. But it allowed plants to avoid reductions by purchasing emission credits. Critics have said that creates "hot spots" of mercury releases harmful to communities.
Many states did not want their power plants to be able to buy their way out of having to reduce mercury pollution.
A neurotoxin linked to learning disabilities, mercury is most dangerous to fetuses, infants and small children, usually when pregnant women or children eat mercury contaminated fish. The National Academy of Sciences estimates that 60,000 newborns a year could be at risk of learning disabilities because of mercury their mothers absorbed during pregnancy.
"There was an extraordinary degree of aggressiveness by EPA in pressing states to abandon a more protective mercury program. EPA devoted enormous effort to preventing states from doing more," said Vickie Patton, a lawyer for Environmental Defense. The group obtained the documents through a Freedom of Information Act filing.
The push to rein in uncooperative states continued until the eve of the Feb. 8 appeals court decision that struck down the EPA's program. The U.S. Court of Appeals for the District of Columbia Circuit said the agency did not adequately address the health impact of its plan.
The administration was poised to take even tougher measures against maverick states. A day before the ruling, the White House Office of Management and Budget approved a draft regulation to impose a "federal implementation plan" for mercury reduction in states whose mercury control measures did not meet EPA approval.
It would have required power plants to comply with the national cap-and-trade provisions, even it that meant ignoring state restrictions.
Both the emissions trading approach and any further requirement on states have been put on hold after the court ruling, EPA spokesman Jonathan Shradar. He denied that the agency was pressuring states.
"Our goal is to have a federal rule. ... Our job is not to pressure states," he said.
But officials involved in developing state restrictions on mercury pollution said the pressure from Washington was considerable. The EPA made it clear it was prepared to reject state plans that limited emissions trading and administer the program from Washington if the states did not back off.
"The administration circled the wagons in fighting the states," said William Becker, executive director of the National Association of Clean Air Agencies, which represents state and county air policy officials. The group worked closely with states to develop their mercury plans.
Yet even as the EPA tangled with the states behind the scenes, government lawyers representing the agency were in U.S. District Court in Washington saying states could require more than the federal program. A state restriction on emission allowances "is not a basis for disapproval" of its program by the EPA, the court was told.
"EPA regulations have provided for decades that states can adopt more stringent standards of performance," Justice Department lawyers representing the EPA in a lawsuit challenging the federal mercury plan said in papers filed with the court last May 4.
But in the two weeks before that court filing, the EPA was, in fact, in a battle with Virginia and Nevada over their plans to be tougher on mercury pollution.
"EPA was contradicting it's own claims to the court," said John Walke, clean air director at the Natural Resources Defense Council. "EPA leaned on these states and twisted their arms to keep them from adopting more protective programs."
Many state officials believed under the federal trading program "some plants could go totally unregulated. That was totally unacceptable to many states," Becker said.
"Over 30 states have repudiated in some form EPA's rules by outlawing trading, accelerated compliance or adopted much more stringent emission levels," he said.
Some states wanted their plants to reduce mercury emissions by 90 percent and to do it quicker than what EPA was requiring. They also did not want their plants buying credits to pollute.
Virginia had accepted the EPA trading program, but it also established more protective state regulations that limited emissions trading. After weeks of discussions, the EPA sent a pointed letter to the state on April 26 that said the state rules interfered with the federal program.
"Believe we have firm legal grounds," the Virginia officials replied, to which the EPA official said if the state persists, EPA would reject the state mercury plan.
"It was more than pressure. They were telling people they were disapproving the programs and were going take them over," recalled Bruce Buckheit, a member of the Virginia Air Pollution Board, which drew up the state's mercury rule.
About the same time, Nevada objected to the EPA's wanting to flood its power plants with pollution allowances far beyond the amount mercury the plants actually produced. That approach included a large bloc of allowances to a coal burning plant that had been shut down because of clean air violations.
"We didn't think it's appropriate to have mercury allowances out there to be available in Nevada or anywhere else in the nation," said Michael Elges, chief of Nevada's Bureau of Air Quality Planning.
In a succession of meeting with Nevada officials, the EPA warned the state's mercury plan would be rejected because of a dispute over the emission allowances.
"They told us from the get-go that they were not pleased. ... They were not bashful about it," Elges said. Nevada did not back off and the EPA notified the state in December it was rejecting the state's plan.
The agency was just as hard-nosed with other states.
When Colorado officials wanted to cut mercury releases by 90 percent and prohibited utilities from selling pollution allowances, the EPA pressed the state agency to find a different.
"Approval of the Colorado plan would encourage other states to restrict trading" and "undermine" the national mercury program, according to an internal EPA memorandum written Dec. 20. It made clear the state plan would not be approved.
While many states resisted EPA's pressure, others ended up bowing to it.
Both Georgia and Montana did not want their plants buying credits to continue polluting. When EPA threatened to disapprove their plans, both dropped their limits on emission trading.
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