This decision on the Mercury and Air Toxics Rule at the DC Circuit Court of
....is a 'slam dunk' victory for President Obama, the U.S. EPA and Department
We have a President who knows how to get environmental protection done, and
President Obama's commitment to Clean Air Act (CAA) leadership and stewardship
makes even Bill Clinton look like a CAA slacker.
A full appreciation of this DC Circuit decision, which is a milestone in the
history of the Clean Air Act, requires consideration of the following
factors and events:
1. First, the 2012 final Mercury & Air Toxics rule was not the first time that
mercury from power plants was subject to regulation under the Clean Air Act.
Before the Clean Air Act amendments of 1990, mercury from power plants
was required to be permitted, regulated and controlled with Best Available Control
Technology when such power plants went through New Source Review permitting
for new major stationary sources and major modifications of such power plants if emissions
were over the significance level, which was 0.1 tons mercury per year
2. Although mercury was a regulated New Source Review pollutant back then, the
other thing that was going on beginning in the 1980's through the first decade of
this century was that the electric utility industry and the petroleum refining industry
were engaged in a massive amount of cheating on complying with EPA's requirements
for getting major modification Prevention of Significant Deterioration
permits (covering several pollutants). Because of the
endemic industry cheating, the PSD controls on mercury emissions were not as
affective as they should have been because of deliberate industry evasion of the requirements.
3. Notwithstanding the circumstances of #2, some PSD permits regulating mercury from
power plants and other sources would have been issued prior to the 1990 Clean Air Act
Amendments. However with the passage of the 1990 amendments, mercury became a hazardous air
pollutant (HAP) regulated under Section 112 of the CAA. Also enacted in the 1990
Amendments was Section 112(c)(6) of the Clean Air Act, which required that
hazardous air pollutants (like the newly designated mercury as HAP) were not subject
to the requirements of the Prevention of Significant Deterioration provisions (including
Best Available Control Technology) that were previously in effect.
4. Because of Congress' action to designate mercury as a HAP and the action of
Section 112(c)(6), the 1990 Clean Air Act amendments had the effect of deregulating
and rendering federally unenforceable all previously established federally approved State
Implementation Plan rules that controlled mercury in New Source Review permittting.
Also, because of CAA Section 112(c)(6), all mercury emission limitations contained
in permits issued prior to the 1990 CAA Amendments became federally unenforceable
and thus were removed from previously issued permits in new Title V permits to be
issued. [For example, state-issued mercury emission limitations set for the Detroit
Incinerator when it was built were thus rendered federally unenforceable when the
1990 Amendments passed.]
5. Because of the events & circumstances under item #4, after 1990 when mercury was made a HAP
by Congressional action, the passage of the 1990 CAA Amendments left no federally
enforceable mercury emission limitations that were previously in effect in place....nothing.
In the closing days of the Clinton Administration, an effort to trigger the beginning of
a rulemaking process for mercury Maximum Achieveable Control Technology
from power plants began. Through several steps with
reports and a completely failed effort by the Bush Administration to set mercury rules
for power plants which were struck down
as illegal by the DC Circuit years ago, then President Obama pushed final rules out
in 2012 that were then upheld by the DC Circuit on 04/15/2014.
So it took 22 years after the 1990 CAA was passed to put mercury controls into
effect and binding on power plants. Plants will have to comply in 3-4 years with
mercury emission reduction requirements.
6. The 04/15/2014 DC Circuit decision is a big victory by President Obama
over the efforts of Governor Rick Snyder and Michigan Attorney General
Bill Schuette, who were petitioners on behalf of the State of Michigan
to overturn EPA's Mercury and Air Toxics Rule in this present case. The proper
question for the press to be asking Snyder and Schuette right now is how do they
like losing this issue at the DC Circuit and are they planning a Supreme Court
Appeal of the DC Circuit final order.
7. For context, all Michigan citizens should understand that when Rick Snyder and
Bill Schuette attack the Clean Air Act in federal courts, they are not representing
the concerns of Michigan citizens and their environment. What Rick Snyder and
Bill Schuette are doing in their attack on the Clean Air Act
is to represent the interests of the Mackinac Center, Russ
Harding, DTE Energy, Consumers Energy, and the Koch-Brothers--funded American
Legislative Exchange Council.
1:13 PM PT: Go here to EPA's Mercury and Air Toxic's rule Web Page:
Here is a more detailed history of the development of the MATS rule:
3:19 PM PT: Here is EPA TRI data showing mercury and mercury compound emissions from all of the power plants in the United States reporting mercury emissions.
Note that a majority of the very largest, top ten mercury-emitting power plants are under jurisdiction of Governor Rick Perry in Texas, which was a petitioner seeking overturn of the rule