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Plan of Inaction

Maryland Opts Not To Join a Lawsuit To Reduce Mercury Emissions From Coal-Fueled Power Plants

By Edward Ericson Jr. | Posted 8/10/2005

In the face of what environmentalists and 12 state attorneys general call illegal actions by the Environmental Protection Agency, Maryland has done something apparently unique among states seeking to safeguard children and pregnant women from mercury poisoning: nothing.

In May, 12 states filed suit in U.S. District Court in Washington, D.C., to force the EPA to follow the Clean Air Act, which requires the agency to set and enforce limits on mercury emissions from power plants.

On June 1, Gov. Robert Ehrlich, a Republican, overruled the decision of Maryland Attorney General J. Joseph Curran Jr., a Democrat, to join that suit and instead sent representatives from the Maryland Department of the Environment to a meeting with EPA officials.

Nothing came of the meeting, and no new meetings have been scheduled. The governor’s office deflected questions on mercury to the Maryland Department of the Environment, where spokesman Richard McIntire explained the policy.

“The whole position all along is, we prefer to negotiate, rather than engage in costly and uncertain litigation,” McIntire says.

When Mayor Martin O’Malley, an undeclared Democratic candidate for governor, stated on June 6 that the city would join the lawsuit, state Republican Party Chairman John Kane told the mayor he should stay out of statewide issues.

But underlying the politics are profound differences about how (or if) government should enforce laws against polluters. On the one side are environmentalists, the governors and attorneys general of 12 states, and many of the EPA’s former enforcement lawyers, some of whom have quit over the past two years because of Bush administration policies. On the other side is the power industry, the Bush administration, and economic theorists who contend that laws and regulations won’t work as well as market-based industry self-regulation. The mercury lawsuit—some 15 years in the making—is just the latest example of this philosophical clash.

The story starts in 1990, when Congress revised the 1977 Clean Air Act to include standards for mercury emissions. Normally after such laws are passed, the EPA takes, at most, a couple of years to write and adopt the detailed regulations that industries have to follow.

Today the regulations are still not in effect.

Mercury is a neurotoxin. It is poisonous and even in tiny doses can harm the development of a fetus or an infant. Because mercury builds up in the flesh of animals near the top of the food chain, Maryland—like all states on the eastern seaboard—advises children and women of child-bearing age to never eat big fish like shark, king mackerel, and swordfish, and to avoid eating rockfish more than once per month.

Although it was known in 1990 that coal-burning power plants emit much of the mercury found in animals and plants, there were no definitive studies proving this, says Anne Brewster Weeks, counsel for the plaintiffs on four pending lawsuits against the EPA.

Brewster Weeks, litigation director for the Clean Air Task Force, a public-interest law organization based in Boston, says power companies worked hard to get the EPA’s mercury study delayed until 1998. Then, she says, they stalled two more years before the agency finally proposed its regulation: that, henceforth, all coal-burning power plants would be fitted with the “maximum achievable control technology” for reducing mercury emissions into the atmosphere.

Three more years of negotiations followed, Weeks says. Then, in November 2003, the EPA abruptly stopped meeting with a group of state environmental-policy officers, private environmental groups, and industry representatives who had been part of an EPA-sponsored “working group” to shape the final rules on mercury emissions. “We were all working under the assumption that EPA was going to issue a MACT [maximum achievable reduction] rule,” Weeks says. “Then EPA decided to stop meeting with this group of stakeholders.”

The agency then proposed to completely exempt power plants from any mercury-emission reduction mandates, and to replace the whole system with a “cap and trade” policy that would allow power-plant owners to buy and sell the right to emit mercury.

Up until then, such radical changes in policy could only be taken after years of hearings and scientific findings—in accordance with the Clean Air Act.

“The whole environmental community was shocked and appalled that the EPA would do this,” Weeks says. “It’s so blatantly illegal, we wonder what the EPA’s strategy is.”

The lawsuits started flying.

Power plants in every state—including three in Maryland that still have no scrubbers of any kind—continue to spew mercury into the air, sending most of it into the Chesapeake Bay.

The plants can operate with no pollution-control devices because the 1990 rules allow the owners of dirty power plants to buy “pollution credits” from other polluters who reduce their emissions of smog and acid rain-producing pollution.

The credit concept is seen by the Bush administration and others as the way of the future—while they see lawsuits and hard rules as a Soviet-style “command and control” past. That’s why the EPA proposed the same kind of cap-and-trade program to reduce mercury pollution.

But there are problems with this approach, says Beth McGee, senior scientist with the Chesapeake Bay Foundation: “Mercury is a toxic chemical, and the law does not allow cap-and-trade on toxic pollution.”

There is another problem, says McGee, whose group has joined two different suits against the EPA. Unlike sulfur dioxide and oxides of nitrogen—two pollutants that the EPA has allowed power companies to trade since 1990—most mercury stays local: “If our plants buy credits, we could create those little mercury hot spots.”

Maryland power plants would likely be in compliance with the toughest mercury-pollution rules if they had scrubbers for sulfur dioxide and nitrogen oxides—instead of buying pollution credits for those. “It’s called co-benefit,” McGee says. “By controlling for those other two pollutants, you also scrub out most of the mercury.”

But because Maryland’s coal-burning plants have no scrubbers, McGee says, the state, and the bay, will continue to suffer unless the EPA is forced to apply the law as it was written.

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