It Only Took 21 Years

EPA finally promises MACT regulations for emissions of hazardous pollutants from power plants

EPA has finally agreed to draft a regulation asked for by Congress 19 years ago, delineating "maximum available control technology" (MACT) that must be used on power plants (technically, electrical generating units or EGUs) to control emissions of mercury and 66 other hazardous air pollutants (HAPs). The list of HAPs includes such delightful substances as asbestos, benzene, and formaldehyde, see CAA § 112(b), codified at 42 USC § 7412(b). These have been emitted from power plants unchecked for years, despite Congress' specific request in the Clean Air Act Amendments of 1990 that EPA study the HAPs emitted by EGUs and regulate them "if the Administrator finds such regulation is appropriate and necessary." CAA § 112(n)(1)(A).

It took eight years for the EPA to complete the asked-for study, and until the waning moments of the Clinton administration for it to designate EGUs as a source category subject to CAA § 112's MACT requirements. Fed. Reg. 79,825 (Dec. 20, 2000). The Bush administration did their best to undo this, delisting EGUs as a source category covered by § 112, and replacing the regulation that should have followed from the listing with the artfully named "Clean Air Mercury Rule" (CAMR). The DC Circuit consigned CAMR to the scrap heap on February 8th, 2008, see New Jersey v. EPA, 937 F.2d 649 (2008), and undid the illegal delisting, reinstating the status quo ante.

This meant that, as of that date, EPA was over five years late in issuing regulations detailing what MACT is for EGUs. (Section 112 required implementing regs to be issued by December 2002, two years after the source category was listed). The Bush Administration continued to drag its heels, and a large consortium of clean air litigators, including the Clean Air Task Force, NRDC, EarthJustice, and the Southern Environmental Law Center, filed suit to prompt it to issue regulations in December 2008. (Meanwhile, these same litigators, fighting coal plants being planned across the country under the permissive Bush-Cheney regulatory regime, filed suit to force their regulation using the provisional case-by-case MACT requirement of § 112(j) (the so-called "MACT hammer.")).

Today's announcement is the final denouement of that fight. (At least one hopes it is final.) EPA has now promised that it will issue those regulations by November 2011, in a settlement filed with the US District Court for the District of Columbia.

Reading this history, you should get a feel for the uphill battle it will be to impose strict, effective GHG emissions limitations on power plants under any pending climate change bill.

Reactions to the settlement can be found from NRDC here, Sierra Club here, and EarthJustice (including quotes from the CATF and others) here.