Clean Air Mercury Rule |
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On February 8, 2008, a three-judge panel on the D.C. Circuit of the U.S. Court of Appeals issued a decision to vacate CAMR [27]. In its ruling, the panel cited the history of hazardous air pollutant regulation under Section 112 of the Clean Air Act (CAA) [28]. Section 112, as written by Congress, listed emitted mercury as a hazardous air pollutant that must be subject to regulation unless it can be proved harmless to public welfare and the environment. In 2000, the EPA ruled that mercury was indeed hazardous and must be regulated under Section 112 and, therefore, subjected to the best available control technology for mitigation. CAMR was promulgated under Section 111 of the CAA, which allows for the use of a cap-and-trade approach rather than implementation of best available control technology. The EPA had delisted mercury from Section 112 without making the necessary findings to show that mercury emissions could be regulated under Section 111 without harming human health or the environment. The panel stated that the EPA overstepped its authority by ignoring Congressional guidelines and the agency’s own earlier findings. With the elimination of CAMR, there is no Federal mandate to regulate mercury emissions. Even before the rule was vacated, however, many States were adopting more stringent regulations that were allowed through an EPA waiver. Most of those regulations called for the application of best available control technology on all electricity generating units of a certain capacity. After the court’s decision, more States imposed their own regulations. At the time AEO2009 was published, roughly one-half of the States, including most of those in the Northeast, had their own mercury mitigation laws in place. Without Federal monitoring requirements, however, some of the States that had previously passed regulations may have to make modest modifications in their guidelines. At present, electricity generating units in States without mercury laws are free to emit without limitations. Because the State laws differ, a rough estimate was created that generalized the various State programs into a format that could be used in NEMS, including a rough estimate of mercury emissions within each State. Moreover, the regulatory environment is extremely fluid, with many States planning to enact new laws or make their existing laws more stringent.
27. United States Court of Appeals for the District of Columbia Circuit, No. 05-1097, web site http:// pacer.cadc.uscourts.gov/docs/common/opinions/ 200802/05-1097a.pdf. 28. “The Clean Air Act [As Amended Through P.L. 108–201, February 24, 2004],” web site http://epw. senate.gov/envlaws/cleanair.pdf.
Contact: Michael Leff/Robert Smith
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