New coal-fired power plants might have to include strict controls to keep mercury out of the air in the wake of a federal court ruling Friday.A three-judge appeals panel struck down a market-based effort by the Bush administration that would have allowed some generators of electricity to buy their way out of meeting their pollution reduction targets.
The Environmental Protection Agency now must either pursue the matter further in court or go back to the drawing board and write rules to regulate mercury in both new and existing plants. The agency said Friday that is it reviewing the decision and has not decided its next move.
The appeals panel's unanimous decision said that the administration violated the Clean Air Act in 2005 when it established a national cap for mercury emissions and permitted power plants running on coal or oil to purchase credits from less-polluting plants.
The EPA illegally took the power plants off a list of industries that are required to use the best available technology at every facility to reduce mercury venting to the greatest degree possible, the judges wrote. EPA's defense was "not persuasive," they added.
A coalition of environmental groups and 17 states challenged the policy, which was to take effect in 2010.
Environmentalists criticized what is called the cap-and-trade approach for mercury because it tends to accumulate near its source, rather than dispersing like other pollutants that have been regulated under similar mechanisms. The challengers said mercury hot spots could endanger children living near power plants that use the credits to send extra pollution into the air.
Coal-fired power plants, which provide half of America's electricity, are major sources of mercury, as well as of sulfur and carbon dioxide.
"Today's ruling adds to the momentum against dirty power in this country," said John Walke, an attorney for the Natural Resources Defense Council, which was one of the petitioners. "It's a very big deal."
The EPA had said the cap-and-trade program would cut mercury emissions by 70 percent from 1999 levels by 2018, but critics had said that requiring controls on every plant could cut emissions even further, by 90 percent.
Jeffrey Holmstead, a former EPA official who oversaw the creation of the vacated rule, said that coming up with a new rule will take years and that in the meantime, he expects a thicket of challenges and litigation at the state level.
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