Court Voids EPA Mercury Rules:

The U.S. Court of Appeals for the D.C. Circuit vacated the Bush Administration's controversial regulations governing mercury emissions from power plants this morning. This is a big loss for the Administration and a big win for the states and environmentalist groups that challenged the rule. The decision in New Jersey v. EPA is here. I'm crashing on some deadlines, but I hope to have more to say about the decision later today or over the weekend.

UPDATE: The Washington Post covers the decision here. As the story notes, one consequence of the decision is to delay the eventual imposition of mercury emissions from power plants. On the other hand, the decision virtually assures that when federal mercury standards are eventually imposed, they will be more stringent than the Bush Administration had proposed.

Related Posts (on one page):

  1. NJ v. EPA and the EPA's Failed Mercury Policy:
  2. Court Voids EPA Mercury Rules:
Haven't read the opinion yet, but it was a great panel from the petitioners' point of view: Rogers, Tatel, and Brown. Maybe not Brown, but they couldn't have asked for more than Rogers and Tatel.

That said, that Judge Brown joined the decision provides yet another example that she is by no means a lackey for (a) the Bush administration, or (b) knee-jerk "conservative" views. Can we please just put that to rest now? Or could her confirmation opponents please at least take notice?
2.8.2008 11:25am
Tim 2000:
I don't think the way Judge Brown rules against the EPA absolves her of being a conservative lapdog. The EPA has been making terrible legal arguments the past few years that even the most conservative jurist would find difficult to swallow.
2.8.2008 1:16pm
Nathan_M (mail):
Lapdog: a servile dependent or follower.

Surely she's absolved from that. That's not to say one could think for other reasons she is extremely conservative and a poor choice for the bench, but this at least shows she is independent from the administration.
2.8.2008 1:27pm
Last time I checked most true conservatives didn't believe in an all-powerful executive. The basis of the decision is pretty clearly the language of 12 c 9. A pretty conservative decision.
2.8.2008 1:52pm
common sense (www):
Why put conservative lapdog together? She can be conservative without being a lapdog. In this case, she illustrated that she is both a conservative and not a lapdog by going against the administration. Tim, I'm not accusing you of being racist, but there does seem to be an element that thinks that any African-American who is conservative is a lapdog to someone else, instead of someone who independently came to a conservative view point.
2.8.2008 1:59pm
Crunchy Frog:
common sense: It's projection. As the cry of "Racism!" is the last bastion of a racist, the charge of sycophancy is characteristic of those prone to it.
2.8.2008 2:20pm
Sua Tremendita:
I was just reading an article about how South Africa is suffering massive power shortages because it failed to build enough powerplants to keep up with growth. Now many mines are closed and the population is suffering rolling blackouts. Mark my words, that's what is going to happen here, and the envirofascists will be crowing about an energy shortage and forget to mention it's entirely their fault. Entirely.
2.8.2008 2:34pm
byomtov (mail):
Last time I checked most true conservatives didn't believe in an all-powerful executive.

The last time you checked must have been a long time ago.
2.8.2008 3:24pm
dan cole (mail):

That was the genius of the Bush Administration mercury plan from the beginning: either the courts would approve a legally and environmentally dubious program that would not take effect until after Pres. Bush left office; or the courts would overturn the rule, send EPA back to square one, so that no mercury rule could possibly take effect before Pres. Bush leaves office. Either way, he couldn't lose.


2.8.2008 6:33pm
Barry P. (mail):
Yep, I think the greenies shot themselves in the foot on this one. Cap and trade did a better-than-expected job in getting rid of lead in gasoline and reducing SO2 emissions in the most economically optimal way possible.

Most of the people arguing against such a program for Hg claimed to be against it because the effects were so localized, but they seem to be taking the opposite tack in the WaPo article, claiming that the effects are in fact widespread.

Some of the other stuff is absurdly silly, such as the line about most of the capital region's power plants being located in VA and MD. You mean they aren't all inside the DC boundaries?
2.8.2008 9:08pm
Randy R. (mail):
sua: " Mark my words, that's what is going to happen here"

You mean, like all those rolling blackouts that occured out west in the first year of the Bush administration?

Since Enron is out of business, I think we will get along just fine.
2.8.2008 10:47pm
Barry P. (mail):
You honestly think Enron caused the California energy crisis? Really?
2.8.2008 11:37pm
Cornellian (mail):

You honestly think Enron coughed up $1.5 billion back in 2005 to settle the action against them by California, Oregon and Washington just because they're such nice, generous people?

posted on Monday, November 21, 2005 10:17 AM by Andrea Robinson
FERC Approves Enron-California Settlement

FERC approved a $1.5 billion settlement between Enron and the plaintiff group known as the California parties, as well as the attorneys general of Oregon and Washington, and FERC staff. The settlement resolves claims and matters arising from transactions in the western energy markets from January 16, 1997, through June 25, 2003.

The settlement includes an $875 million unsecured claim against Enron in the bankruptcy proceeding, a $600 million civil penalty in favor of the California, Oregon and Washington attorneys general, and cash or cash equivalence of $47.4 million. Ominously for others who did business with the disgraced energy giant, the settlement also requires Enron to cooperate with the settling parties in their claims against other entities related to events in the Western energy market.

The settlement has also been approved by the California Public Utilities Commission and the United States Bankruptcy Court for the Southern District of New York, which is adjudicating Enron's bankruptcy. FERC's order noted that the value and timing of the settlement's $875 million unsecured claim in the bankruptcy proceeding is uncertain due to the ongoing bankruptcy litigation.

FERC Chairman Joseph Kelliher called the Enron settlement a turning point in the agency's efforts to bring closure to the 2000-2001 Western energy crisis. He also attributed the settlement to FERC's "strong enforcement posture." Combined with the Chairman's recent statements in support of FERC's Office of Market Oversight and Investigations, its seems clear that the agency intends to emphasize its market oversight and enforcement roles.
2.8.2008 11:51pm
David M. Nieporent (www):
You honestly think Enron coughed up $1.5 billion back in 2005 to settle the action against them by California, Oregon and Washington just because they're such nice, generous people?
I honestly think Enron didn't cough up $1.5 billion, because they were bankrupt.
2.9.2008 1:30am

common sense: It's projection. As the cry of "Racism!" is the last bastion of a racist, the charge of sycophancy is characteristic of those prone to it.

So, should I assume that this is just projection on your part?

Anyway, Enron just took advantage of California's truly feckless energy policy. Enron had a hand in the things, but the state government deserves the lion's share of the blame. It wasn't just a matter of too much regulation of the energy industry. The State of California decided to start playing the energy markets, but they sent sheep to do a wolf's job and then cried about the fact they got their jugular ripped out.
2.9.2008 3:34am
Craig Oren (mail):
This is the same panel that last year invalidated EPA's attempt to expand the exemption from "new source review" for "routine maintenance." Judge Judith Rogers also wrote that opinion. There she characterized EPA as taking a "Humpty-Dumpty" approach toward interpreting the statute. She obviously likes fairy-tale analogies.
2.9.2008 9:46am
Xmas (mail) (www):
Off on the Enron topic. Enron had a giant role in the California energy crisis. California spot-pricing market scheme was created by a gaggle of energy consultants. Enron had a firm hand in writing the rules for California's electricity market, since they were trying to create an electricity trading market like the one they had for natural gas. The rules that Enron helped to write were very bad, with poor oversight and many opportunities for market manipulation.

Now, the government of California did actually pass the laws that created the trading market, so they're to blame too. But they were relying on professional advice in an area where they had little practical knowledge. Also, the electricity producing companies went along with the new market scheme, so they didn't even see how badly the rules were written.
2.9.2008 12:48pm
John Walke (mail) (www):
It is simply incorrect that the Court's ruling delays the eventual imposition of mercury emissions from power plants, despite the claims of EPA's spokesperson and the industry defenders of the agency's "Clean Air Mercury Rule." That rule established a model two-phase cap-and-trade program for mercury (which states were not required to follow -- and many did not), setting the first "cap" in 2010 at 29% reductions and the second cap in 2018 corresponding to 70% reductions. But here are the key points to understand that contradict the claims about delayed reductions:

1) EPA itself admitted that the phase I cap would be achieved entirely from coincidental mercury reductions achieved by another regulation, the so-called Clean Air Interstate Rule (CAIR) that reduces SO2 and NOx emissions. CAIR was completely unaffected by the Court's mercury ruling, and so were the mercury reductions that CAIR will achieve. So the Court's decision will not result in less mercury reductions being required under federal law than EPA was already counting on under another regulations (CAIR) between now and 2017. EPA's wounded complaint that there is no national regulation of mercury as a result of the Court's ruling is utter nonsense as a practical matter, since the Clean Air Mercury Rule did not require greater mercury reductions than CAIR -- which remains in force -- until 2018 anyway. (CAMR defenders will argue that the phase II cap would have driven early reductions prior to 2018. But those reductions would not be nearly as great as lawfully adopted MACT standards for new and existing plants, with such standards requiring much earlier compliance than CAMR. See (3) below.)

2) Many if not most states had already developed state mercury laws or regulations to meet their Clean Air Mercury Rule submission obligations, and those state laws will continue in force. States must now impose more rigorous controls and emission limits reducing all hazardous air pollutants from all new coal-fired power plants under federal law, meeting stricter standards than CAMR required of new plants. (CAMR covered only mercury, not arsenic, lead, nickel and all the other toxins from power plants; did not require reductions from each electric generating unit in the country; and was projected to result in net state-wide mercury increases from many states.) So on that score too, the Court's ruling accelerates and strengthens control of all hazardous air pollutants from power plants, including mercury. This too proves how profoundly wrong EPA and industry are to characterize the ruling as an environmental setback. (A setback to the economic preferences of the utility industry and the policy preferences of EPA, yes.)

3) Finally, the Maximum Achievable Control Technology standards that EPA must now adopt for all new and existing power plants in the country must meet stricter legal standards than EPA adopted in CAMR under authority of Clean Air Act section 111. (State laws and regulations must conform to these new MACT standards.) New plants must be controlled to the standard of the best-controlled plant in the country, while existing plants must be controlled to the level of the average of the top 12% of plants in the country. And compliance must be achieved no later than 3 years following adoption of these standards. So even if you assume a new administration does not issue final rules until 2010, compliance by each plant in the country would be required by no later than 2013 -- 5 years earlier than EPA's 2018 cap. And because EPA itself admitted the 2018 cap's 70% reduction level would not be achieved until at least 2026 (due to emissions credit banking), a MACT standard will require full compliance 13 years earlier than CAMR. Had the EPA not so flagrantly violated the law -- as the Court had no difficulty finding -- MACT standards for each power plant in the country would already be the law of the land.
2.9.2008 5:10pm
Randy R. (mail):
Barry: "You honestly think Enron caused the California energy crisis? Really?"

Well, who else do you think caused them? Others have written better on this, but it was an artificial problem. Sure, Pat Robertson and Dick Cheney blamed environmentalists for not allowing them to build more power plants, but there were of course very wrong.

How do I know? Because the blackouts ended, and despite seven years of growth, California has not had any more problems, despite not having built more power plants, or at least not that many.

Please, Barry, just because Dick Cheney says something doesn't mean it's true!

Now, that's not to say that we don't have a future problem. But we can greatly reduce the need for more power plants by taking simple conservation measures. Yes, I know. Dick Cheney scorns conservation as a 'personal virtue', but once again he is wrong. (Is he EVER right?).
2.9.2008 7:46pm
Xmas: If you're an easy mark, you will get fleeced. Who holds the shears is immaterial. And I've never heard of anyone who got conned for any reason other than their own greed- as any wolf will tell you, you can't scam someone who isn't trying to run a scam of their own.

I'm afraid that time isn't doing my memory any favors, and the Enron debacle was a few years ago, so I can't easily find a source for this, but I believe that California resorted to buying electricity from Oregon at ridiculously inflated rates because they offered to pay those rates up front instead of negotiating. You shouldn't get into a high stakes game if you are going to play like that. I have some sympathy for the poor loser who gets suckered into gambling away his kid's college fund in a game against sharks. My sympathy is limited when the loser is a behemoth like the state of California, just as it would be if someone forced me to let them manage my kid's college fund and then lost it at the races. I wouldn't be blaming the track in that case.

Enron was the opposite of market failure. It was a failure of government. Something you might want to think about is this: how did a nice respectable little energy company like Enron turn into what it was at the end? What incentives drove them?
2.9.2008 10:35pm
Jmaie (mail):
Randy - is it possible to think that Enron was only one of many players in the California rolling blackout debacle, without having heard it from Dick Cheney? (hint - the answer is yes)
2.10.2008 2:45pm
davod (mail):
"How do I know? Because the blackouts ended, and despite seven years of growth, California has not had any more problems, despite not having built more power plants, or at least not that many."

Why then did I hea a lot of talk last year abut blackouts from the California governmemn?
2.11.2008 2:40pm
davod (mail):
As with most of the envirnmentalists clams there is no real science behind the Mercury legislation. It is pushed because as a social movement. The costs will be seen in less, more expensive, power.
2.11.2008 2:43pm
TokyoTom (mail):
This Administration has never failed to disappoint, and have shown a consistent preference for the short-term interests of moneyed rent-seekers over the hard work of improving environmental laws, and the mercury rules are a classic example. The real sickness in the Clean Air Act has been the deal that has in effect subsidized the production and consumption of dirty coal, gransfathered old facilities and penalized cleaner coal by imposing beast available technology on newer ones. Billions have been wasted as a result, and battles over acid rain are still being fought.

John Walke, you've clearly got the letter of the CSAA on your side, but do you think that our healt is better served on mercury by uniform federal regulation, state-by-state approaches, or is there something else you would support? Does this provide any levers for tackling climate change issues?
2.12.2008 3:35am