EPA: Too Much Mercury? Too Bad

So, imagine that the building next door to you is being torn down and you learn that it's spewing cancer-causing asbestos dust into the air around your home. You quickly call the Environmental Protection Agency expecting to see the building owners hauled off to jail. But the nice people at EPA say "Sorry, the owner of the building next door has bought some asbestos credits from the building owner across town who is doing an especially good job cleaning up his asbestos. Deal with it."

That's essentially what Bush's EPA is proposing in its new proposal to regulate mercury pollution from coal-fired power plants. A similar system is used for air pollutants like ozone, that are not considered to be "hazardous air pollutants" under the Clean Air Act. Since mercury is a human neurotoxin, the Clinton Administrtion had decided that pollution credits would not be appropriate.

Cap-and-trade programs, which let companies buy and sell the right to emit pollutants, are widely considered to be a great approach to dealing with non-toxic emissions like carbon dioxide and sulfur dioxide that diffuse into the air without affecting the neighborhoods where they are released -- but other emissions, such as mercury, create local toxic hotspots in the areas immediately surrounding the polluting facility. In this case, if dirty plants in Chicago bought mercury pollution credits from clean plants in Maryland instead of cleaning up their own emissions, Chicago residents would get a real bum deal.

The New York Times reported today that the Clinton Administration had considered the same proposal and decided that it would be illegal.

The Clean Air Act lists 189 hazardous air pollutants, including asbestos, lead and mercury, and requires the environmental agency to design strict rules limiting their emissions. Coal-burning power plants currently release 48 tons of mercury a year, or about 40 percent of all the mercury emissions produced by humans in the United States.

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"The Clinton administration evaluated the same approach that the Bush administration is now relying on and found that it was not legally supportable under the Clean Air Act," said Gary Guzy, an E.P.A. general counsel under Mr. Clinton.

"Because of the specificity of the Clean Air Act provision on mercury and power plants, we concluded that there was not a legal basis for this approach," Mr. Guzy said.