Bush, EPA Mercury Loophole Struck Down by DC Court

by Glynn Wilson

QUINTON, Ala., Feb. 9 - A mentally retarded boy stood in the middle of the country road, in front of a ramshackled house trailer and a burned down shack, as I came around the last bend and saw Alabama Power’s mammoth coal-fired Miller Steam Plant rising out of the strip mines and clear cuts in what used to be piney woods.

As I pulled alongside him on the edge of Jefferson and Walker counties northwest of Birmingham and rolled down the van window and was about to ask him what it was like to live in the shadow of one of the most foul, polluting power plants in the country, before I could say anything he started signing me, letting me know he could not hear, or speak.

The experts say mercury from power plants, a potent neurotoxin, causes brain damage and other serious health problems in at least 630,000 babies born each year, just in the United States. Their blood is contaminated when their pregnant mothers eat mercury-laden fish, most of it caught in water from polluted power plants.

With this information well established and widely known, however, mercury advisories are in place on about one-third of America’s lakes and one-fourth of its rivers. Experts say a single gram of mercury, or just 1/70th of a teaspoon, is enough to contaminate a 25-acre lake so that fish caught there are totally unsafe to eat.

Yet under the administration of President George W. Bush, the Environmental Protection Agency changed course from the years when the Clinton EPA wanted every one of the 1,100 power plants in the country to take concrete steps to reduce mercury emissions.

Under Bush, the EPA opted instead for a so-called “free market solution.”

The agency passed rules it claimed were legal under the Clean Air Act to allow a “cap and trade” system of pollution credits designed to lower the overall level of mercury pollution nationally, while allowing some power companies to continue dumping massive amounts of mercury and other pollutants into the air and water in places where management doesn’t want to spend the money to clean up its plants. Coal and power operations scar the American South landscape and devastate its people. Many of those places are mostly populated by poor people and minorities.

The Bush EPA market system would have allowed some companies, such as Southern Company’s Alabama Power, to purchase so-called “pollution credits.” In other words, they would have allowed them to send payments to other, cleaner plants, while spending nothing to clean up their own dirty plants.

According to scientists, health experts and environmentalists, this would have created “hot spots” of contamination in some places, such as the air over the city of Birmingham - and the water in the Locust Fork of the Black Warrior River around the Miller Steam Plant, which discharges more than 1,500 pounds of mercury each year - the fourth-worst in the country.

Unwilling to live with that situation, however, a number of health and environmental organizations, including the Waterkeeper Alliance with a chapter here called the Black Warrior Riverkeeper, sued in federal court two years ago to stop the rules from going into effect.

And this past Friday, they won a major victory for all of us when the U.S. Court of Appeals for the District of Columbia rebuked the Bush EPA and ruled the regulatory loophole illegal under the clear language of the law passed by Congress and signed by President Richard Nixon in 1970.
The Clean Air Act listed mercury as one of the pollutants to be regulated. The Bush EPA wanted to remove it from the list - without going to Congress to ask for a change in the law.

Sound familiar? The Bush administration doesn’t much like the law, whether it applies to torture, spying on Americans - or cleaning up the environment.

“These rules represented what was perhaps the biggest sellout to industry in the history of EPA,” said Waterkeeper Alliance legal director Scott Edwards, interviewed Saturday in New York. “It’s a real tragedy that we’ve had to spend two years getting this industry-scripted scheme struck down while energy companies continue to poison our children with mercury.”

Fourteen states, including California, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Vermont and Wisconsin, challenged the EPA’s rules in 2005, along with dozens of Native American tribes, public health and environmental groups and organizations representing nurses and doctors.
Notice Alabama is not on the list. Attempts to reach the Riley administration in Montgomery and Alabama Power for comments on the ruling failed over the weekend.

Southern Company’s Alabama Power is one of the worst polluters in the world and is known for manipulating politicians and the corporate press with its monopoly money, using its economic power to keep politicians on a leash, like wining and dining the state’s top law enforcement officer, Attorney General Troy King, in an Atlanta Braves sky box. It also uses “green washing” advertising campaigns - NOT to reach out for new customers, but to keep chain press outlets such as the Birmingham News and local TV news stations from covering its pollution critically.

Anyone in Alabama should be familiar with the blue bird ad campaign that has been running in newspapers and on TV stations for years, featuring two blue birds on a power line in ostensibly funny conversations. But critics of the program are beginning to ask why the power company needs a rate increase every year when it has a virtual lock on the power business with no real competition and it spends so much money on advertising. And it spends next to nothing on pollution reduction, a few paltry million each year while it racks up billions in profits, some say the highest guaranteed profit margin of any power company in the nation.

The Spin

Power industry groups are already hard at work trying to spin the story to blame the environmentalists, lawyers and the “liberal” courts for preventing the Bush EPA from implementing it’s plan to “clean up” the mercury pollution by getting the overall amount down nationally.

Scott Segal, director of the Electric Reliability Coordinating Council, a power industry trade group, issued this statement late Friday afternoon.

“Today, a panel of the U.S. Court of Appeals for the District of Columbia vacated the so-called Clean Air Mercury Rule … the first ever national rule to address mercury air emissions. Ironically, with their aggressive litigation posture, the environmental community and their state allies have again caused uncertainty and delay in regulating mercury,” he said. “The Environmental Protection Agency essentially must return to the drawing board in developing a new mercury rule.”

Does that statement remind you of a movie called “Thank You For Smoking?” It should.

The Facts

Coal-fired power plants like the Miller Steam Plant are by far the largest source of airborne mercury in the U.S., releasing more than 50 tons of deadly mercury into the air each year. Gravity pulls much of it down to the earth, where it ends up in our waterways.

Delayed developmental milestones, reduced neurological test scores and cardiovascular disease also result from mercury exposure, and it has been linked to serious physical and central nervous system disorders such as various sexual dysfunctions and, according to numerous scientific studies, mental retardation.

Even the Bush EPA recently raised the estimate on the number of women whose mercury concentrations in umbilical cord blood is significantly higher than the mother’s blood concentration to 1 in 6 women nationwide.

Yet the most industry-friendly administration in the history of corporate capitalism spent a billion dollars of your hard-earned tax dollars to try and pass the illegal rules anyway.

More Reaction

Here are some other reactions to the DC court ruling.

Vickie Patton, an attorney with Environmental Defense, which along with Sierra Club and the National Wildlife Federation was represented by Earth Justice in the lawsuit, said: “The federal court agrees with the American Medical Association that EPA’s flawed mercury program for coal plants is hazardous to our health. This decision is a victory for the health of all Americans, but especially for our children who can suffer permanent brain damage from toxic mercury pollution.”

Alice McKeown, a coal analyst for the Sierra Club, said: “Coal company claims of ‘clean coal’ will now be put to the test. These mercury pollution reductions will be an important trial run to see if coal is still viable in a cleaner energy future.”

Ann Weeks, an attorney for Clean Air Task Force who represented U.S. PIRG, Ohio Environmental Council, Natural Resources Council of Maine, and Conservation Law Foundation in the case said: “The court has now told EPA in no uncertain terms to follow the law as it is written. We are looking forward to working on rules that reflect the most stringent controls achievable for this industry, as the Clean Air Act requires. That’s what is needed now, if we are ever to alleviate the problem of mercury contamination in fish and wildlife.”

John Suttles, attorney with the Southern Environmental Law Center who represented Physicians for Social Responsibility, American Nurses Association, American Public Health Association and the American Academy of Pediatrics in the lawsuit, said: “With today’s decision, EPA will now have to get back to the business of protecting people’s health rather than higher profits for electric utilities.”

“The Bush administration cannot ignore its responsibilities to bring power plants’ mercury pollution under control,” Earth Justice attorney James Pew said. “We hope the administration will gain some new respect for the law in its last year and start working to protect Americans from pollution and stop working to shield polluters from their lawful cleanup obligations.”

John Walke, attorney with the Natural Resources Defense Council, said the court’s ruling “should show power plant companies and the EPA once and for all that they may cheat and delay required clean-up obligations, but the law will catch up to them. Electric power plants are America’s worst polluters of mercury, smog, soot and global warming pollution, and their days of reckoning are long overdue.”

“This is a very positive ruling, but we should not forget that no matter how much this industry reduces mercury emissions, coal will never be clean,” added Waterkeeper Alliance President Steve Fleischli. “From mining to burning to toxic ash, ‘clean coal’ is a sham, a dangerous diversion at a time when we must move our national energy strategy to sustainable, renewable energy sources.”

The Ruling

A copy of the DC court decision is available in pdf format here.