State Wins Ruling on Mercury Reduction

A federal appeals court Friday sided with Wisconsin and 14 other states in ruling against the Bush administration’s approach to reducing emissions of fish-contaminating mercury emitted by coal-fired power plants.

The decision is a green light for Wisconsin regulators to push ahead with their own plan to cut mercury emissions from power plants by 90%.

"What we see under the decision is that ultimately the court is saying that (the Bush administration rule) didn’t go far enough, from a public health standpoint," said Matt Frank, secretary of the state Department of Natural Resources. "This is very important decision, and we are very pleased that the court has taken this decision."

It’s unclear how much it would cost state utilities to comply with such a mandate, but the impact would be significant in a state that relies heavily on coal plants to make electricity. We Energies has estimated it would cost $50 million to $200 million to comply with the federal rule vacated by Friday’s ruling.

Mercury pollution is a key concern because after it is released from smokestacks, it falls on water and converts to a more toxic form and accumulates in fish. Wisconsin has fish-consumption advisories that recommend people limit consumption of fish caught in state lakes.

"Mercury pollution is an incredible public health threat, and it’s literally ruining people’s ability in the state of Wisconsin to enjoy their lakes," said Dan Kohler, director of Wisconsin Environment, a group affiliated with the U.S. Public Interest Research Group.

Representatives of Wisconsin electric utilities said Friday that they were concerned that the court ruling leaves regulations in flux, and that it doesn’t give them a clear road map of how to proceed.

"We and other utilities are looking at a state of uncertainty about what the eventual regulations will be, what will it be that we need to achieve, and by when," said Brian Manthey, a We Energies spokesman.

"We’re pretty firmly stuck in limbo," agreed Rob Crain, spokesman for Madison-based Alliant Energy Corp.

In its decision, the federal appeals court in the District of Columbia said the Environmental Protection Agency’s attempt to change the way mercury pollution would be regulated failed to follow Clean Air Act requirements. The EPA rule had sought a 70% reduction in mercury emissions from power plants by 2018.

The EPA’s "explanation deploys the logic of the Queen of Hearts, substituting EPA’s desires for the plain text" of the Clean Air Act itself, the appeals court ruling says.

Wisconsin joined several other states in suing the EPA over the rule in 2005. At the time, Gov. Jim Doyle said the federal rules didn’t go far enough. Those standards, Doyle said, could lead to more mercury-contaminated fish in Wisconsin waterways.

That could dampen the public’s appetite for catching fish, and anglers might shy away from a sport that is estimated to generate $2 billion yearly in Wisconsin, which a few years ago ranked sixth nationally in revenue generated from fishing.

Wisconsin’s fish-consumption advisories urge pregnant and breastfeeding women, women planning to become pregnant and children younger than 15 to avoid eating certain fish, such as musky and swordfish, and to eat walleye, catfish and other game fish only once a month.

In 2000, the National Research Council estimated that 60,000 newborns a year are at risk of learning disabilities because of mercury their mothers absorbed during pregnancy. In recent years, the EPA and U.S. Food and Drug Administration have issued warnings to pregnant women and nursing mothers about the mercury risks from eating too much fish.

In Wisconsin, coal plants are the second-biggest source of mercury emissions after ERCO Worldwide, a Port Edwards chemical manufacturer that uses mercury in its production process.

That plant announced last summer that it will spend $95 million by 2009 to eliminate mercury from its process, reducing the state’s emissions of mercury by about 28%.

Eric Uram, conservation chair with the Sierra Club’s John Muir chapter, said the court ruling would result in a Clinton administration era directive taking effect. That directive gives the states power to apply more stringent air pollution standards for each power plant that comes up for renewal, he said.

Scott Manley, environmental policy director at Wisconsin Manufacturers & Commerce, disagreed. That immediate requirement would be invoked only if the EPA doesn’t respond to Friday’s ruling with a new mercury rule, and EPA is required by the appeals court to issue a new rule, he said.

But conservation groups applauded the ruling and the DNR’s decision to move forward with the tougher rule.

The DNR, Frank said, has been negotiating with environmentalists, business groups and the utilities over specifics of the rule — for example, when the 90% reduction needs to be implemented.

Frank said he hopes to bring the revised rule back to the seven-member Natural Resources Board this spring and then get more input at public hearings.

Wisconsin Manufacturers & Commerce has expressed concern that Wisconsin’s economy could become less competitive if regulations adding more cost to utilities will be borne by Wisconsin companies, making them less competitive.

A study conducted for the state’s utilities said the added cost of a Wisconsin mercury rule being considered last year would have been $41 million to $57 million a year.

Uram said that amounts to less than a dollar a month for electricity customers. State residents have indicated in public opinion surveys that they would pay more to see mercury pollution curbed, he added.

A key concern for Wisconsin and environmental groups that sued the Bush administration was its call for a cap-and-trade scheme that would allow dirty power plants to release a lot of mercury by buying credits from cleaner-burning power plants.

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