Energy Law

DC Circuit Orders Immediate Tightening of Mercury Control Rules

By Tracy Davis

On March 21, a three-judge panel of the US Court of Appeals for the District of Columbia Circuit made clear that its February 8, 2008 order mandating a return to tighter mercury control rules on coal-fired power plants must go into effect immediately.  The court's February order threw out the Bush Administration's Clean Air Mercury Rule (CAMR), which was implemented in 2005 and established a cap-and-trade program for mercury emissions from coal- and oil-fired power plants, and directed a return to the more stringent standards enacted in 2000 under the Clinton Administration.  The court's most recent ruling requires the Environmental Protection Agency (EPA) to begin implementing the tighter rules immediately, instead of allowing time for the EPA and others to request rehearing of the court's February order.

In its February order, the court rejected the EPA's CAMR standards as violating the Clean Air Act.  The CAMR standards required coal- and oil-fired plants to reduce mercury emissions by 70% by 2018, and permitted utilities to trade mercury emissions to allow them to reduce compliance costs.  The CAMR standards also reversed the 2000 mercury standards, which had required mercury emissions to be regulated under a maximum achievable control technology (MACT) standard.  The MACT standard that will now take effect again requires proposed power plants to adopt emissions controls in use at the best controlled similar pollution source, which will likely require power plants to remove an estimated 85% to 90% of the mercury from their emissions. 

The court's ruling will have an immediate impact on coal-fired plants that are currently in the planning and permitting stages, as these plants will have to revise their plans and permit applications in order to remove higher amounts of mercury.  However, the EPA and several utilities that supported it have indicated they plan to seek rehearing of the court's February order, and thus the ruling could be modified or reversed following en banc review.  In the meantime, the court's recent order requires the EPA to begin tightening its controls immediately.

Full post as published by Energy Legal Blog on March 25, 2008 (boomark / email).