WASHINGTON — New coal-fired power plants could 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 new rules to regulate mercury in both new and existing plants. The agency said Friday that it was reviewing the decision and had 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 wrote.
A coalition of environmental groups and 17 states, California among them, challenged the policy, which was slated to take effect in 2010.
Environmentalists criticized the so-called cap-and-trade approach for mercury because the neurotoxin tends to accumulate near its source, rather than dispersing like other pollutants that have been regulated under similar mechanisms. Cap-and-trade has been used for sulfur, and there are proposals in Congress to use this form of control for the now-unregulated greenhouse gas carbon dioxide, which contributes to global warming.
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 D. Walke, an attorney for the Natural Resources Defense Council, which was one of the petitioners. "It's a very big deal."
But Frank O'Donnell, president of Clean Air Watch, said the big problem is the roughly 600 existing coal-fired power plants that will not be federally regulated until a new rule is put in place.
