Legal News

State Supreme Court Affirms Decision Striking Pa. Mercury Reductions

By Brian Harris

By Peter Hall
Of the Legal Staff/Law Weekly

The state Supreme Court has affirmed a Commonwealth Court decision that declared invalid a Pennsylvania Department of Environmental Protection rule designed to reduce mercury emissions from coal- and oil-fired power plants.

The decision in PPL Generation v. Commonwealth, handed down late Wednesday, came about a week before the rule was due to take effect Jan. 1.

In a single-judge decision in January, Commonwealth Court Judge Dan Pellegrini found the Pennsylvania mercury rule invalid because federal law precludes state regulation of pollution sources listed in the federal Clean Air Act and regulated by the U.S. Environmental Protection Agency.

Although the federal government shifted responsibility for regulating mercury emissions to the states in 2004, the U.S. Court of Appeals for the D.C. Circuit overturned the regulatory scheme last year in New Jersey v. Environmental Protection Agency, 517 F.3d 574 (D.C. Cir. 2008), a challenge by various environmental groups and state governments.

Because the Pennsylvania rule was created and promulgated as an alternative to the federal regulation?s cap and trade scheme ? in which states could trade credit for mercury emissions ? it became invalid once the federal regulatory scheme was struck down.

In affirming the Commonwealth Court decision, the Supreme Court, in an opinion by Chief Justice Ronald D. Castille, rejected arguments by the DEP that it is entitled to relief under numerous principles of administrative law and that the appellants waived any challenge to the rule because they failed to object upon its promulgation.

?There is no dispute that mercury is a pernicious pollutant, and limiting and controlling mercury emissions through valid regulation is desirable.  Yet, logically the PA Mercury Rule simply cannot stand following  New Jersey.  The Commonwealth?s arguments, at heart, evince an understandable, but ultimately legally weak, frustration at the bind in which the Commonwealth is placed when a challenge in the federal regulatory system and resulting litigation introduces this kind of uncertainty respecting the role the states may play.  By the same token, however, those subject to a regulatory scheme where federal authorities can and have acted, should not have to choose between two schemes at their peril.  At the end of the day the Commonwealth simply cannot prevail on the arguments forwarded here,? Castille wrote.

Full post as published by The Legal Intelligencer Blog on December 23, 2009 (boomark / email).