President Bush’s Clear Skies Initiative was introduced on Valentine’s
Day, Feb. 14, 2002; however, it was not love at first sight in congressional
chambers. The initiative called for amendments to the Clean Air Act for sulfur
dioxide, nitrogen oxides and mercury. The reductions in emissions would be achieved
through a market-based system of caps and trades, in which an overall limit
on emissions is set for the pollutants and individual companies can trade “credits”
of higher or lower emissions, as long as the whole industry group stays within
the caps. The Clear Skies Initiative differs from the Clean Air Act by allowing
much higher emissions for much longer time periods. Congress has tried to pass
Clear Skies legislation in the past three years without success, while running
against a ticking clock at the Environmental Protection Agency (EPA), which
was required to make rulings for these pollutants by March 15 of this year.
The key challenge with the initiative has been the coupling of mercury, a more
toxic pollutant, with sulfur dioxide and nitrogen oxides, in less stringent
emission-control legislation. Mercury was added to EPA’s list of toxic
pollutants in 2000, and the Clean Air Act requires that emissions from a toxic
pollutant be reduced without delay through a maximum achievable control technique
(MACT), which is the maximum reduction in emissions given costs and feasibility.
Coal-fired power plants emit elemental mercury into the atmosphere, and the
mercury settles into soils and waters, where it reacts with microorganisms to
form methylmercury (see Geotimes, August 2003).
Methylmercury accumulates in increasing concentrations up the food chain from
fish to birds and humans. People get most of their mercury from consuming mercury-laden
fish. Mercury poisoning can cause neurological, cardiovascular, thyroid and
digestive problems, and fetuses and children are particularly susceptible to
mercury-caused brain damage and developmental problems. These health impacts
and increases in warnings about contaminated fish have kept the issue of mercury
emissions in the political limelight (see Geotimes,
November 2004).
A Clear Skies bill (S. 131) was introduced in the Senate on Jan. 24, in a last-
gasp effort to amend the Clean Air Act before EPA had to issue rules on March
15. Soon after the bill was introduced, the Inspector General of EPA issued
a critical report calling the mercury rule-making process biased toward a cap-and-trade
system without appropriate consideration of a MACT program and criticized EPA
for adding the health benefits of reducing sulfur dioxide and nitrogen oxides
to the benefits of the cap-and-trade mercury program. The report also indicated
that the health effects of mercury on fetuses and children were not fully analyzed.
With the problematic EPA rule-making as a backdrop, the Clear Skies bill failed
in a tied vote on March 9, leaving both sides bitter. Sen. George Voinovich
(R-Ohio) accused the Democrats of being inflexible, while Sen. Tom Carper (D-Del.)
accused the White House of blocking the EPA from providing the senators with
a full analysis of the effects of the legislation. A day after the vote, EPA
announced their Clean Air Interstate Reduction rule for sulfur dioxide and nitrogen
oxides. Five days later, EPA announced their Clean Air Mercury Rule, which would
first remove mercury from the list of toxic pollutants and then use a cap-and-trade
program to reduce emissions. This announcement drew criticism from the media,
Congress, states and environmental groups, including in press reports that said
EPA omitted findings from a peer-reviewed health benefit analysis from Harvard
University.
In a letter to EPA’s Acting Administrator Stephen Johnson on March 18,
11 House Republicans expressed their disappointment with the mercury rule. As
of early April, 31 senators were also devising plans to block the rule, either
through an appropriations rider, the Congressional Review Act or Johnson’s
confirmation process. According to Electric Utility Week, one source
in Congress suggested that the administration had put out such an “arbitrary
and capricious” mercury rule in hopes that a lawsuit would delay compliance
deadlines for several years.
After EPA published the first part of its rule, removing mercury from the list
of toxic pollutants, a lawsuit was filed by 10 states, mostly from the Northeast
and including Pennsylvania, a coal-producing state with overriding mercury concerns.
Meanwhile, several states have or are considering their own stricter mercury
regulations.
This opposition runs contrary to the electric utility industry, which was pleased
to see mercury removed from the EPA’s list of toxic pollutants. Nationally,
1,300 coal-burning and oil-fired power plants account for about 33 percent of
the mercury contamination in freshwater and soils. The rest of the mercury comes
from other industries and countries.
Still, technologies to monitor and limit mercury emissions from power plants
are not fully developed. The monitoring techniques suggested in EPA’s mercury
rule work well for monitoring sulfur dioxide and nitrogen oxides but are not
reliable enough to monitor mercury, according to Lee Zeugin, a partner at Hunton
& Williams who represents the Utility Air Regulatory Group. Under these
circumstances, he says in Electric Utility Weekly, a cap-and-trade system is
advantageous, as it gives utility companies more “flexibility” in
complying with regulations, while technology is still in development.
Clearly, mercury poses the most frustrating and complex challenges for reducing
and monitoring emissions of the three pollutants considered in the legislation
and rule-making on air pollution. Although the Bush administration would like
to develop a less strict cap-and-trade program for all pollutants by amending
and softening the Clean Air Act, they may need to reconsider this approach for
the more toxic pollutants that may require more immediate and stringent reductions.
More research on the way mercury accumulates in the environment (see story,
this issue), as well as advanced and cost-effective technologies for monitoring
and limiting emissions, should help guide policy-makers. This information must
then be shared and developed across industries to reduce mercury risks in the
United States and elsewhere.
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