"EPA"

New Mercury Rules—Benefit or Bust?


By: Ashley Payne, Senior Staff Member

According to the Environmental Protection Agency (EPA), “mercury is a naturally occurring element found in air, water and soil.”[1] Mercury is also found in many rocks, including coal.[2] Mercury is released into the environment when coal is burned.[3] In fact, “coal-burning power plants are the largest human-caused source of mercury emissions in the United States.”[4] This becomes a problem once the mercury from the air settles in water, resulting in mercury build-up in fish, shellfish, and animals that eat fish.[5] While exposure to mercury at high levels may cause harm to the brain, heart, kidney, lungs and immune system, research indicates most people’s fish consumption is not a health concern.[6] However, such mercury levels may cause harm to unborn babies and young children’s nervous system, causing potential learning disabilities.[7]

In response to these potential health risks, congress enacted the Clean Air Act. Specifically, section 112 addresses emissions of hazardous air pollutants.[8] “Section 112 requires that EPA establish emissions standards that require the maximum degree of reduction in emissions of hazardous air pollutions.”[9]  On December 21, 2011, the EPA finally demanded that coal-fired power plants reduce their emissions by 90 percent as the 1990 Clean Air Act demanded.[10] These regulations are in response to a Consent Decree of the D.C. Court of Appeals requiring a proposal by March 16, 2011, and a final rule by December 16, 2011.[11]

These rules ultimately establish a limit for emissions for qualifying facilities that must be met within four years.[12] There are currently about 1,100 coal-fired burners being used at 600 power plants nationwide.[13] The EPA estimates that the implementation of this statute will cost approximately $9.6 billion.[14] However, the EPA also estimates that the health benefits will equal somewhere between $37 billion to $90 billion.[15] Ultimately, these regulations may not be as beneficial as the EPA foresees. According to the executive director of the Partnership for Affordable Clean Energy, “numerous studies have shown it will result in the loss of more than one million jobs in the next decade.”[16] The American Coalition for Clean Coal Electricity indicated that the rules could cost an average of 183,000 jobs every year from 2012-2020.[17] An associated press analysis “estimated that of the nation’s 600 coal-fired power plants, more than thirty-two would likely close because they would not be cost-effective to run under the new rules.”[18]

While it is hard to tell at this juncture how the new mercury rules will ultimately affect the coal-fired power plants, one thing is certain: the $9.6 billion dollar burden placed upon such facilities will not be easy to face. If, as is predicted, there are plant closings and a loss of jobs, the effects will be felt most harshly in those regions with the majority of coal-fired power plants—the mid-east. However, if the benefits are as the EPA describes them—avoiding premature deaths, heart attacks, respiratory problems, etc.—the temporary economic hardship may well be worth the cost.

[1] Environmental Protection Agency, Mercury: Basic Information http://www.epa.gov/mercury/about.htm (last updated October 01, 2010).

[2]Id.

[3]Id.

[4]Id.

[5]Id.

[6]Id.

[7] Environmental Protection Agency, Mercury: Basic Information http://www.epa.gov/mercury/about.htm (last updated October 01, 2010).

[8] Environmental Protection Agency, Summary of the Clean Air Act http://www.epa.gov/lawsregs/laws/caa.html (last updated Aug. 11, 2011).

[9]Id.

[10] Ken Silverstein, Obama Showers Coal With Mercury Rule, http://www.energybiz.com/article/12/01/obama-showers-coal-mercury-rule

[11] Environmental Protection Agency, Mercurry and Air Toxics Standards: Basic Information, http://www.epa.gov/airquality/powerplanttoxics/basic.html (last updated Jan. 17, 2012).

[12]Id.

[13] Environmental Protection Agency, EPA Issues First National Standards for Mercury Pollution from Power Plants / Historic ‘mercury and air toxics standards’ meet 20-year old requirement to cut dangerous smokestack emissions, http://yosemite.epa.gov/opa/admpress.nsf/bd4379a92ceceeac8525735900400c27/bd8b3f37edf5716d8525796d005dd086!OpenDocument.

[14]Environmental Protection Agency, Mercury and Air Toxics Standards: Regulatory Actions, http://www.epa.gov/airquality/powerplanttoxics/actions.html, (last updated Jan. 30, 2012).

[15]Id.

[16] Elizabeth Weise, EPA rules target mercury pollution, toxics from power plants, http://www.usatoday.com/money/industries/energy/story/2011-12-19/power-plants-mercury-rule/52142516/1 (Jan. 21, 2011).

[17]Id.

[18]Id.

Kentucky Coal and Governor Beshear file suit

By Bethany Baxter, Staff Member

Under the Clean Water Act (CWA) the EPA has authority to review state issued permits pursuant to §402(d)(2). 33 U.S.C.A. §1342 (d)(2). Kentucky, in assuming responsibility for implementing the CWA, must provide the EPA with notice of permits the state plans to issue, and the EPA may then object to the requirements defined by the state in the permit.

Id

.

Historically the EPA has been reluctant exercise this authority. However, an EPA report published in April of this year has prompted the Agency to utilize §402 authority in imposing heightened requirements specifically affecting mining permits under the CWA. The EPA released “Detailed Guidance for Appalachian Coal Streams,” in which the EPA links coal mining activity to increases in conductivity levels in waters. 75 Fed. Reg. 18,500 (April 1, 2010). The report sets benchmarks for conductivity levels, based on scientific finding that increased conductivity adversely affects aquatic life in streams. The report explicitly states that the report should be used to “clarify EPA’s expectations,” and states that the EPA expects that Regions 3, 4, and 5 “begin using this interim final guidance immediately in your review of Appalachian surface coal mining activities.” 75 Fed. Reg. 18500 at 1-2.

Kentucky’s narrative water quality standards state, “total dissolved solids or specific conductance shall not be changed to the extent that the indigenous aquatic community is adversely affected.” 401 KAR 10:031, §4(1)(f). Based on this standard and the newly released report, the EPA rejected several Kentucky permits, finding that the Kentucky Division of Water failed to consider emerging science regarding coal mining affects on water, and failed to incorporate available science concerning conductivity. The Kentucky Coal Association (KCA) filed suit last week against the EPA and Administrator Jackson, claiming that scientific underpinnings of the report are seriously flawed and hence the Agency’s reliance on the report is arbitrary and capricious.

See

complaint, at 19-20. KCA publically called EPA action an “illegal agenda to end coal mining in Kentucky,” and Governor Beshear, who joined the suit stated, “the arbitrary and unreasonable decisions being made by the EPA threaten to end the responsible mining of coal and eliminate the jobs of an estimated 18,000 Kentucky miners who depend on mining for their livelihood.” Dori Hjalmarson,

Coal industry, Beshear administration sue EPA over coal mining permits

, Oct 19, 2010, Lexington Herald Leader. Both the National Mining Association and the state of West Virginia filed similar suits.

Coal mining is central to the cultural and economic identity of Kentucky. Recently industry practices, particularly mountain top removal, have received much critical attention on the national level. The EPA, in rejecting state permits, is more proactively addressing water quality and pollution associated with coal mining. It is no surprise that the industry and state are resistant. It will be interesting to see how this suit reflects the broader coal debate and tensions between economic growth and environmental protection.

To review the Kentucky Coal Association’s complaint:

http://www.kentuckycoal.com/documents/Complaint.pdf

To read the EPA’s “Detailed Guidance for Appalachian Coal Stream:”

http://www.epa.gov/owow/wetlands/guidance/pdf/appalachian_mtntop_mining_detailed.pdf

EPA Announces Settlements with Glass and Cement Makers

By: Derek Leslie, Staff Member

In late January, the EPA announced that Saint-Gobain Containers, Inc., a glass manufacturer, and Lafarge North America, Inc., a cement manufacturer, both agreed to multi-million dollar settlements. The settlements, which cover fifteen glass manufacturing plants and thirteen Portland cement manufacturing plants, represent the first major EPA action since announcing a renewed focus on improving compliance among industries that emit significant amounts of air pollution. Under the settlements, the companies are required to install new pollution control upgrades, accept enforceable emission limits, and pay substantial civil penalties.

In the complaint, filed concurrently with the settlement statement, the EPA alleged the companies had violated new source permit provisions under the Clean Air Act ("CAA"). The CAA requires major sources of air pollution to obtain a permit before modifying the facilities in a way that would significantly increase the emissions of pollutants. CAA permits limit these emissions for specific pollutants at a particular facility. As part of the settlement, Saint-Gobain has agreed to install pollution control equipment totaling an estimated $112 million in order to reduce emissions of NOx, SO2, and particulate matter (PM) by approximately 6,000 tons each year. Additionally, they have agreed to pay a $2.25 million civil penalty, split between the federal government, ten states, and two regulatory agencies. Similarly, Lafarge has agreed to pay a $5 million civil penalty, and spend an estimated $170 million installing and implementing control technologies to curb NOx emissions by 9,000 tons each year and SO2 by more than 26,000 tons per year at their cement plants.

These settlements are an example of more rigorous EPA oversight over CAA emissions, and indicate that the EPA will be enforcing the act more aggressively, pushing NSPS permitting beyond the paradigmatic regulated industries. Indeed, Ignacia Moreno, Assistant Attorney General for the Justice Department's Environment and Natural Resources Division in the announcement suggested, "Enforcing the Clean Air Act's new source review program is a priority, not just in the coal-fired power plant industry, but also in industries like cement and glass manufacturing that have been identified as major sources of pollution. Companies in these industries should strongly consider the benefits of these types of settlements as we intend to aggressively enforce compliance with the law."

Source: United States Announces Two Major Clean Air Act New Source Review Settlements at 28 Industrial Plants Nationwide, January 21, 2010, http://yosemite.epa.gov/opa/admpress.nsf/0/3CCB6EBF63B522AF852576B2006439B7

EPA & NAFTA: Tensions Rise When Trade With Mexico Threatens United States’ Environmental Regulations

Comment By: Melissa Logan, JNREL Vol. 19, No. 1


Abstract By: Alex Torres, Staff Member


This comment examines the nexus between the protectionist goals of the EPA and their interaction with other departments and agencies within the federal government. Specifically addressed are the regulations promulgated by the Department of Transportation (DOT) and Federal Motor Carrier Safety Administration (FMCSA), pursuant to Presidential order. The regulations in question provided for the permitting of Mexico-domiciled trucks to operate in the United States, pursuant to the goals of the North American Free Trade Agreement (NAFTA).


The Bus Regulatory Reform Act of 1982 had the practical effect of restricting the entering of Mexico-domiciled trucks into the United States, with the consequent effect of burdening trade between the United States and Mexico, in order to comply with the goals of NAFTA. However, in 2001 then President George W. Bush indicated his intent to modify the Bus Regulatory Reform Act. The lifting of the moratorium on Mexico-domiciled trucks was to take place upon the creation of pertinent safety regulations by the DOT and FMSCA.


In the landmark case Department of Transportation v. Public Citizen, 541 U.S. 752 (2004), the Supreme Court rejected the contention that the FMSCA was required to prepare an Environmental Impact Statement (EIS) that detailed the environmental impacts of their regulations. Specifically, the National Environmental Policy Act of 1969 requires that an EIS be prepared for "major Federal actions significantly affecting the . . . human environment." The trial court divided this consideration into two questions: causality and severity. While the trial court found both, the Supreme Court held that there was insufficient causal connection between the implementation of the regulations and the alleged environmental harm, notably the pulmonary danger resulting from increased diesel smog levels due to increased traffic.


The Court is quick to point out that a mere assertion of "but for" causality is insufficient to satisfy the causality requirement. Rather the Court looks to NEPA and applies the "rule of reason" to determine if there is a strong causal relationship between "the environmental result and the suspected cause." Ultimately, the Court sides with the arguments of the DOT, that the effect of increased traffic, and thus pollution, is the result of the Presidential order (and thus Congress in granting such power), not the creation of regulations defining the boundaries of safety.


Here the DOT and FMCSA are bound by law to create these safety regulations, and according to the Court, the regulations they do create have no causative relation to the environmental harm. Any connection between the harms and the regulations are correlative and incidental, but not causative. Thus the Court determines that there would be no "overall usefulness" in preparing an EIS as the FMSCA and DOT lacked the authority to utilize such findings in the discharge of its duties and alter the moratorium instituted by President Bush.

Tribal Environmental Sovereignty: Culturally Appropriate Protection or Paternalism?

Article By: Anna Fleder and Darren J. Ranco, JNREL Vol. 19, No. 1


Abstract BY: Anthony Cash, Staff Member


According to popular conceptions in the United States, Native American culture is closely tied to the earth and, therefore, environmental awareness. Thus, it will come to most with little surprise that an examination of cases concerning Native Americans' tribal rights to regulate environmental issues within the Federal system would be illustrative of the larger issues confronting tribal sovereignty. By analyzing the issues and the direction of the court's ruling in Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996), as compared to other recent decisions delineating the place of Native American tribes within the complex environmental regulatory scheme of the United States, one can see the possible solutions to problems posed by the tribal attempts at environmental regulation that affect non-tribal lands and people.


The decision in Browner, was made possible by the 1987 amendments to the Clean Water Act. These amendments allowed states to exercise a certain amount of authority in determining water quality standards and allowed for Native American tribes to be treated as states for certain purposes including the determination of water quality standards. In determining these standards for a five-mile long portion of the Rio Grande, the Pueblo of Isleta Indian Reservation adopted provisions more restrictive than New Mexico. The EPA's enforcement of these standards resulted in serious restrictions being impose on a waste water plant located near Albuquerque. The Tenth Circuit's decision in Browner ultimately sided with the Isleta Pueblo on every issue.


This was clearly a victory for the environment as it enabled tribes to regulate the amount of pollution entering waters which flowed through their lands, but Browner's impact on tribal sovereignty is not so clear. On one hand, Browner did allow tribal authorities to exert power over non-tribal peoples and land. On the other hand, Browner puts tribes in the position of becoming subservient to the Federal government in order to gain control over their own water quality standards. In essence, this puts the tribes in the position of semi-sovereign nations. Thus, tribal sovereignty is threatened at the same time that it is advance.


Browner, makes one thing very clear if tribes are to advance their interests and maintain cultural independence, then they must be willing to engage with the federal government in legal actions. But what legal actions and how to balance the need of tribal sovereignty against the need for cross-cultural dialogue and participation must be determined by the tribe involved on a case by case basis.

Sierra Club v. EPA: Is Changing the American Rule for Attorneys’ Fees Unamerican? The Debate on Congressional Fee-Shifting Statutes

Comment By: Kelly L. Jones, JNREL Vol. 18, No. 2


Abstract By: Zach Greer, Staff Member


The traditional American rule for awarding attorneys' fees to litigants is that "the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975). This rule's rationale is rooted in fairness, meaning that a defendant should not be financially responsible for a plaintiff's unsuccessful lawsuit. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983). However, there are currently more than 150 congressional fee-shifting statutes (i.e., exceptions) that do not adhere to the American rule. Ruckelshaus, 463 U.S. at 684.


This comment focuses on environmental fee-shifting statutes (e.g., Clean Air Act) that permit courts to award attorneys' fees "whenever appropriate." Loggerhead Turtle v. Volusia County, 307 F.3d 1318, 1322-23 (11th Cir. 2002). More specifically, Ms. Jones analyzes a crucial United States Court of Appeals for the District of Columbia Circuit opinion, Sierra Club v. EPA, 322 F.3d 718 (D.C. Cir. 2003), and discusses this opinion's significance and its impact on congressional fee-shifting statutes and their viability.


In Sierra, the court held that the catalyst theory, "plaintiffs can recover attorneys' fees if they 'obtain, through settlement or otherwise, substantial relief prior to adjudication on the merits,'" still applied to the Clean Air Act ("CAA"). Sierra Club, 322 F.3d at 719. Guided by a prior United States Supreme Court case, the Sierra Court reasoned that "Congress found it necessary to explicitly state that the term appropriate 'extended' to suits that forced defendants to abandon illegal conduct, although without a formal court order." Sierra, 322 F.3d at 722. At least with regard to the CAA, the Sierra Court resurrected the catalyst theory and permitted courts to award attorneys' fees based upon fee-shifting statutes that contained the language "whenever appropriate." Id. at 719.

Through her analysis, Ms. Jones shows how practical and advantageous the catalyst theory for awarding attorneys' fees is and further argues that this theory, combined with citizen suits that are encouraged by these congressional fee-shifting statutes, "ensure environmental compliance."

Recession May Provide Opportunity for Senator to Stifle EPA’s Regulatory Authority under the Clean Air Act

By: Addison Schreck, Staff Member

In December of 2009, the Environmental Protection Agency announced that it had conclusively determined that greenhouse gases, previously notorious primarily for their effects on the environment, also threaten public health. msnbc.com, EPA: Greenhouse Gases are Dangerous to Humans, Dec. 7, 2009, http://www.msnbc.msn.com/
id/34311724/ns/us_news-environment/
. In making this determination the EPA cleared the way for regulation of greenhouse gases under the Clean Air Act. This announcement peaked the interests of environmentalists and the fears of big businesses across the country.


Even more recently, on February 2nd, Senator Lisa Murkowski (Alaska (R)) introduced a resolution intended to strip the EPA of the aforementioned ability to regulate greenhouse gases via the Clean Air Act. John M. Broder, Senators Want to Bar E.P.A. Greenhouse Gas Limits, N.Y. Times, Jan. 21, 2010, available at http://www.nytimes.com/2010/01/22/science/earth/22climate.html. In addition to curtailing the EPA's ability to regulate six of the primary gases blamed for global warming, the bill seeks to restrain the EPA from finding that U.S. fuel production of biofuels, such as ethanol, is responsible for forest clearing and cropland expansion. Charles Abbott, House Bill Would Prevent EPA Regulating Carbon, Scientific American, Feb. 3, 2010, http://www.scientificamerican.com/article.cfm?id=house-bill-would-prevent.


The concerns voiced by Murkowski, which include predictions of increased agriculture costs come as no surprise after the alarms raised by the national business community in past years. Deborah Zabarenko, CO2 Regulation Could Hit 1 Million U.S. Firms, Reuters.com, Sept. 16, 2008, http://www.reuters.com/article/idUSN1529571120080916. The senator's resolution would require a majority vote in the Senate, and if the resolution does advance through the House it would face the near certainty of veto by President Obama, "because it would rob him of a critical regulatory tool." John M. Broder, Senators Want to Bar E.P.A. Greenhouse Gas Limits, N.Y. Times, Jan. 21, 2010, available at http://www.nytimes.com/2010/01/22/science/earth/22climate.html.


The mood in the United States is one of hope, hope that we have seen the worst of the recession. Whatever legislation or regulation comes into existence, the tenuous economic situation the in which the country and world are positioned must be taken into account. So many of the jobs lost in the current recession are said not to be coming back, and we are seeing entire professions virtually disappear, whether to overseas markets or the relentless march of time. Catherine Rampell, The Growing Underclass: Jobs Gone Forever, N.Y. Times, Jan. 28, 2010, available at http://economix.blogs.nytimes.com/2010/01/28/the-growing-underclass-jobs-gone-forever/. However, the promotion of growth does not mean that progress on the climate change front must come to a halt. At least one side of the debate sees hope in the possibility of so called "green jobs," and if the old industries are no longer interested in doing business within our borders, then what's so wrong with reinventing ourselves? Carol E. Lee, Obama Focuses on Green Jobs, Politico, March 23, 2009, http://www.politico.com/news/stories/0309/20360.html. Necessity has always been the mother of invention, a quick look at today's headlines, and it's obvious, it's time to get inventive.

Proposed Legislation Seeks to Encourage Biofuel Industry

By: Derek Leslie, Staff Member

A new bill making the rounds in Congress could have a significant impact on agriculture across the country. Charles Abbot, House bill would prevent EPA regulating carbon, Reuters, Feb. 3, 2010, http://www.reuters.com/

article/idUSTRE6124L720100203. While the legislation, introduced by Representatives Ike Skelton, Collin Peterson, and Jo Ann Emerson, has received attention mostly for its provisions amending the Clean Air Act to exclude six greenhouse gases from being listed as "air pollutants," frustrating a recent EPA ruling that held otherwise, it also is meant to spur growth in the biofuel industry. Id. The bill would encourage greater use of biofuels in two ways. First, it would adopt a broad definition of biomass. This would include crops, trees, algae, and manure. All of which could be used to make renewable fuels. Id. The legislation would also allow for the use of biomass from federal forests and conservation areas. Secondly, the legislation would prevent the EPA from considering greenhouse gas emissions from foreign land use change, such as forest clearing or the development of cropland, when determining the relative emissions levels of fuel production. Id. These developments, their proponents claim, will help spur the growth of the renewable fuel industry in the United States. Id.

The new bill is far from a done deal however. It faces opposition from the Obama Administration, as well as from many members of Congress. Id. While comprehensive climate change legislation has stalled out in the Senate, this bill may fare better given its more limited scope. Nevertheless, due to its controversial provisions excluding some greenhouse gas from being listed as "air pollutants," it is likely to face a tough fight during this election year.

University of Kentucky researchers explore alternative to filling surface mining sites in Appalachia


By: Donald Smith, Staff Member

There is a new stream at Guy Cove in Kentucky's Robinson Forest, and it could have a significant impact on the future of environmental law with regard to surface-mining. Bill Estep, Buried Streams, Ripple of Hope, Lexington Herald-Leader, Jan. 31, 2010, available at http://www/.
kentucky.com/latest_news/
story/1118658.html#. When coal companies remove rock for surface mining, the "spoil" (extra rock and dirt) that cannot be placed back in the mined area because it swells, is placed into fills in hollows around the site and compacted for stability. Id. This process often results in covering up parts of streams, to the extent that a 2003 federal study found that an estimated 730 miles of streams in Eastern Kentucky were wiped out by surface-mining activities. Id. This is likely an underestimate, as Greg Pond, formerly a biologist with the Kentucky Division of Water who is currently employed at the Environmental Protection Agency ("EPA"), explains in a 2004 research paper that the estimate in the federal study addressed only a particular class of stream, and it is likely that surface-mining has in fact buried hundreds more miles of headwater areas in Kentucky. Gregory Pond, Effects of Surface Mining and Residential Land Use on headwater Stream Biotic Integrity in the Eastern Kentucky Coalfield Region, http://www.water.ky.gov/NR/rdonlyres/ED76CE4E-F46A-4509-8937-1A5DA40F3838/0/coal_mining1.pdf (last visited Feb. 2, 2010). The coal industry has taken a different approach entirely as to what constitutes a stream. As explained in the Lexington Herald-Leader, "[the coal industry says it would be impossible to mine coal without creating fills. To many associated with the industry, the areas high on the side of a hill where water begins to collect are not streams at all, but merely drainage ditches that only flow with water when it rains or when snow melts." Bill Estep, Buried Streams, Ripple of Hope, Lexington Herald-Leader, Jan. 31, 2010, available at http://www.kentucky.com/latest_news/
story/1118658.html#.



University of Kentucky researchers built a new stream atop the fill at Guy Cove, and planted vegetation and trees. Id. The result is a promising alternative to the current method of filling that, while in its early stages, appears, to have provided for high quality water in a stable stream as a method of reclaiming watersheds. Id. The new research development is particularly interesting against the backdrop of the current legal climate with regard to stream reclamation. The EPA has stalled dozens of permit applications in Appalachia, including Eastern Kentucky, for further review, for concerns including restoration of stream functions after mining. Id.