In a move that could delay
construction of a number of proposed coal-fired power plants, a federal appeals
court has ordered the immediate implementation of its decision last month to
throw out the Bush administration’s mercury cap-and-trade program and restore
2000 Clinton-era rules that require much more stringent mercury controls.
In a brief order issued March 14,
a three-judge panel of the U.S. Court of Appeals for the District of Columbia
Circuit granted a motion by environmentalists, public health advocates, and
Indian tribes to issue the legal “mandate” of the court’s February 8 decision on
the Bush administration’s Clean Air Mercury Rule. Environmentalists challenged
the Bush administration action, and with the February 8 and March 14 orders, the
Clinton EPA finding now becomes the law of the land, unless the utility industry
wins a possible appeal to the Supreme Court.
The latest ruling has immediate
implications for coal plants still in the planning stage or working their way
through the permitting process. Plants that have not yet received their permits
almost certainly will have to re-write their permit applications to reflect the
best level of control in place today—likely at least a 90% mercury removal
rate.
Plants that have received permits
but not yet begun construction may also have to seek new permits to reflect the
best mercury control rate possible. Plants with permits that are already under
construction may be able to argue that the control levels in their permits
should remain in place, but environmentalists may challenge these permits if
they do not specify at least a 90% removal rate.
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