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Industry Urges Killing Mercury & Air Toxics Standards With False Arguments to Resurrect Mercury-Only Standards

John Walke

Posted June 11, 2012 in Curbing Pollution, Health and the Environment, U.S. Law and Policy

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As we approach the deadline for Senator James Inhofe (R-OK) to hold a floor vote on his Congressional Review Act (CRA) resolution [pdf] to eliminate EPA’s Mercury and Air Toxics Standards (MATS) for power plants, lobbyists for dirty power companies are peddling a new falsehood in a desperate attempt to kill these life-saving standards.

They are now arguing to Senate offices that a successful vote on a Congressional Review Act resolution to eliminate MATS would still allow EPA to issue mercury-only standards for power plants.

This is wildly wrong.

It misrepresents the Clean Air Act, the Congressional Review Act and what both would allow and require. There are several different scenarios following a hypothetical successful Senate vote to kill the Mercury and Air Toxic Standards, but none of those scenarios would result in EPA being allowed to issue mercury-only standards.

(We believe the Senate should and will defeat Inhofe's reckless CRA bill, but I'm addressing here the latest demonstrably false argument by dirty power lobbyists attempting to persuade undecided Senate offices to support killing the mercury and air toxics standards.)

There are fundamental reasons under the law and in practice why the power lobby's arguments are wrong.

First and most obviously, even if the Senate and then the House voted to kill MATS, the president surely would veto that bill just as the White House vowed to do [pdf] with the equally destructive TRAIN Act.

So Senators would be walking the plank and falling into a bubbling pool of toxic pollution and public criticism only to have the mercury and air toxics standards that they voted against continue. There would be no fanciful mercury-only standards under this scenario.

As we examine a second outcome – the hypothetical scenario where Senator Inhofe’s CRA is signed into law – we must remember that tepid mercury-only standards for power plants are of course the unholy grail for dirty power plant companies that their allies have been pushing since the Bush administration. (More on that later).

In fact, former Bush administration officials have returned to Capitol Hill as lobbyists for dirty power companies to push the same weak mercury-only stratagem. Their agenda is to eliminate limits on the 80 or so other hazardous air pollutants from power plants that include neurotoxins like lead and carcinogens like dioxins and formaldehyde.

Let’s now examine the industry’s fanciful “mercury only” argument and its implications in the CRA context. One version of this argument goes something like this [subscription required]: EPA’s 2000 determination at the end of the Clinton administration (that found that it was both “appropriate and necessary” to regulate power plant air toxins including mercury) somehow paved the way for a mercury rule that did not address other toxic pollution.

These lobbyists go on to say[subscription required] that "[a] mercury rule would not be substantially similar [] because EPA's Utility MACT rule is not really a control on mercury but on other pollutants."

Great story, except it is factually wrong, has no bearing on how the Clean Air Act works, and contradicts prior federal court rulings. Other than that it's a smashing idea.

What about the lobbyists' claims that EPA's mercury and air toxics standards are "not really a control on mercury but on other pollutants." Tables 3, 4, 5, and 6 of EPA’s final mercury and air toxics standards [pdf] list specific mercury limits that apply to existing and new power plants. It boggles the mind why industry lobbyists would make statements that are so demonstrably false it takes all of 30 seconds to find portions of the final standards that rebut their statements. EPA’s standards unquestionably control mercury from power plants, and they also control the over 80 other hazardous air pollutants that power plants emit. Just as the Clean Air Act requires.

The law requires this because once an industry is “listed” for regulation under section 112 of the Clean Air Act (that was the effect of the 2000 decision – to list power plants under section 112 of the Act), the statute requires EPA to set standards for all hazardous pollution emitted from that industrial source. The courts have upheld this obligation repeatedly, stating that  “[] EPA has a “clear statutory obligation to set emission standards for each listed HAP.”” 

The only way to escape this obligation is to follow the “delisting” procedures in the Clean Air Act that require EPA to show that no power plant in the country emits hazardous air pollution in excess of levels that are harmless, after factoring in an adequate margin of safety. This would of course be an impossible showing to make with respect to the many known carcinogens and other air toxins that power plants emit. In fact, even the Bush administration didn’t bother trying to make this impossible showing.

Instead, the Bush EPA adopted a mercury-only standard (sound familiar?) in 2005. A federal court forcefully rejected that approach in 2008 because the Bush administration had not followed the statutory delisting procedures and had failed to issue the legally required standards for all air toxins from power plants. So the court sent the rulemaking back to EPA precisely to adopt standards for power plants that covered all hazardous air pollutants from power plants.

So what does this mean in the context of a CRA vote?

Take the hypothetical but implausible scenario where a successful MATS CRA were signed into law by the president. The Clean Air Act would still continue to require standards covering all hazardous air pollutants from power plants precisely because of these past court decisions, the plain language of the Clean Air Act, and EPA's inability to make the health-based showing to "delist" power plants from these standards.

But eliminating the mercury and air toxics standards through a CRA vote would impose a very severe constraint on the ability to issue meaningful replacement standards for any and all hazardous air pollutants.The CRA would prohibit “substantially similar” replacement standards, and this constraint could block EPA from issuing any meaningful standards for mercury or any other hazardous air pollutants.

But whatever standards EPA did manage to adopt still would need to be issued in compliance with the Clean Air Act. As just discussed, this would require standards covering all hazardous air pollutants from power plants.

There is nothing in the Congressional Review Act that authorizes EPA to pick and choose which parts of the Clean Air Act it wishes to follow and which it does not when it issues replacement standards. Those replacement standards may not be "substantially similar" according to the CRA, but the CRA does not repeal the Clean Air Act nor alter the prescriptions, proscriptions and court precedents that EPA must follow.

The CRA just recklessly eliminates the existing health safeguards then creates spillover chaos that I have addressed here. The result would be significantly delayed safeguards against all hazardous air pollutants, including mercury, with EPA laboring to issue standards that some future court would not consider substantially similar.

So to a remarkable degree industry’s “mercury-only” talking point on the Hill is merely ex-Bush administration officials and allies trying to resurrect illegal Bush EPA history from the dead.

Let’s review that history briefly:

First, the dirty power lobby, with the help of the Bush Administration, pushed a mercury-only cap-and-trade program in the doomed Clear Skies legislation. When that irresponsible legislation foundered, the Bush Administration crafted the deeply unlawful Clean Air Mercury Rule (also a mercury cap-and-trade approach) that a federal court invalidated in 2008.

These dirty power representatives wanted then, and want now, to ignore and escape emission limits on the 80 or so other hazardous air pollutants (in addition to neurotoxic mercury pollution). Why are these lobbyists so determined to eliminate controls for the vast majority of hazardous air pollutants from power plants?

Because if you eliminate the requirement to clean up acid gases, metals, and all the other hazardous air pollutants, you eliminate the need to install pollution controls required to clean up all this harmful air pollution. And it is these controls that will avoid the 11,000 premature deaths and 130,000 asthma attacks that these standards will deliver every year.

These health benefits will come from the pollution controls that reduce harmful particulate matter, some of which is toxic and some of which is not, but all of which is reduced from the same smoke stack with the same controls required to reduce the 80 plus hazardous air pollutants that power plants emit.

In fact, it is technologically impossible to reduce all hazardous air pollutants from a power plant without also reducing substantial amounts of particulate matter that are responsible for tens of thousands of premature deaths. (For a more detailed debunking of industry arguments about particulate matter, see “the mercury-soot shell game” here, and discussion of Anne Smith’s testimony (and Dr. Jerome Paulson’s response) here.

Senate staff should ask industry lobbyists how one would reduce all toxic air pollution from power plants, as the law plainly requires (see above), without also reducing significant amounts of harmful particulate matter. Then they could watch the lobbyists stammer and change the subject, because there is no other way.

And that reveals the dirty little secret that industry lobbyists have so helpfully elucidated with their latest, desperate argument: dirty power companies don't want to reduce all of the toxic air pollution that they release into America's communities. They would much prefer just reducing mercury emissions, as industry representatives successfully persuaded the Bush administration to attempt when it broke the law.

So now we know the industry motives for a “mercury only” standard: the right to spew unlimited amounts of all other toxic air pollution from power plants, and the ability to escape pollution controls that will deliver vast health benefits to the American people.

There is not one word in the Clean Air Act or the Congressional Review Act, however, that would allow EPA to issue standards covering only mercury. Anyone telling Senate offices that a successful CRA vote would send EPA back to the drawing board to issue a mercury-only standard is grossly misrepresenting both the Clean Air Act and the CRA. In both the real world and any alternative universe that industry lobbyists care to concoct, successful CRA resolution or not, a mercury-only standard is not in the cards. 

But one thing is certain– a successful CRA vote would have a disastrous, and deadly, impact on our right to clean air. The radioactive spillover effect of the “substantially similar” prohibition in the CRA would severely weaken any standards for mercury, for acid gases, dioxins, lead, arsenic and nearly 80 hazardous air pollutants emitted by power plants. So in addition to more neurotoxic mercury pollution, a Senator who votes “yes” on Inhofe’s CRA would also ensure their constituents of more carcinogens.

So the choice falls to Senators – vote with Inhofe and you get more neurotoxins, more carcinogens, and more sick kids. Or vote against him and you get cleaner air, healthier Americans, and first-ever national limits on the deadly toxic air pollution that power plants spew from their stacks.

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