ON THE RESOLUTION OF DISAPPROVAL
RELATING TO EPA’S MERCURY RULE
Senators Patrick Leahy (D-Vt.), Susan Collins (R-Maine), and Jim Jeffords (I-Vt.), joined by 27 other senators, will introduce a resolution to halt EPA’s rule to delist power plants as a source of hazardous air pollutants, such as mercury, under the Clean Air Act. The resolution will be introduced pursuant to the Congressional Review Act (CRA).
BACKGROUND ON THE CONGRESSIONAL REVIEW ACT -- The discharge petition is the next step in the procedural process under the CRA to ensure the resolution is considered by the full Senate. The resolution of disapproval will be referred to the Senate Committee on Environment and Public Works. If the resolution of disapproval is not acted on by the Committee, then a discharge petition signed by 30 senators will automatically discharge the resolution. If 30 senators submit a petition for this purpose, the measure is automatically discharged and placed on the Senate calendar, from which it may be called up for floor consideration. Though the CRA is not explicit, the Senate has treated motions to take up and consider disapproval resolutions, by whomever makes such a motion, as privileged matters that are not debatable. That would assure a Senate vote on the resolution.
BACKGROUND ON EPA’S RULE -- The Environmental Protection Agency recently issued two new controversial mercury emissions rules. The first rule (the “delisting” rule) revokes a 2000 EPA decision that it is “necessary and appropriate” to require that each power plant apply technology to reduce mercury emissions. The other scheme gives utilities an extra 13 years before they would have to install any mercury-specific controls on power plants. Further, many plants will never have to install controls if they choose to simply buy their way out by purchasing allowances from other plants. The Leahy/Collins resolution deals only with EPA’s “delisting” rule.
MERCURY’S THREATS TO PUBLIC HEALTH -- Mercury is a potent neurotoxin that damages fetuses' and children's developing nervous systems. At least 44 states have issued warnings urging residents to avoid or limit their consumption of mercury-laden fish caught in local waters, and the federal government has recommended that children and women of childbearing age eat no more than two meals of low-mercury fish per week and avoid eating certain fish altogether.
Recent analyses show that the estimate of infants with unsafe mercury levels in their blood has doubled to 630,000. The National Academy of Sciences has confirmed scientific research demonstrating that maternal consumption of unsafe levels of mercury in fish can cause neuro-developmental harm in children, resulting in learning disabilities, poor motor function, mental retardation, seizures and cerebral palsy.
While Administration officials claimed stronger safeguards would exceed the benefits to public health, they failed to consider an EPA-funded, peer-reviewed Harvard University study showing that more stringent limits on power plant mercury pollution are both cost effective and necessary to protect public health. While ignoring the new EPA-funded Harvard study, EPA clearly considered input from polluting industries. In fact, EPA’s first proposal for these rules lifted exact texts from memorandum provided by utility industry lobbyists.
The resolution is offered to ensure that the health and safety of the American public is fully considered, before EPA is able to rescind its statutory commitment to protect public health from the dangers of mercury pollution. Leahy, chief sponsor of the resolution, believes that it is wrong to leave power plants as the only source of mercury and other toxic air pollution that is allowed to avoid rigorous emissions standards under the Clean Air Act. Doing that, he believes, poses undue risks to the public’s health that the nation need not and should not accept.
This petition, he noted, will now allow the full Senate to debate the merits of the EPA rule.
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Statement of Senator Jim Jeffords
On The Resolution Of Disapproval
Relating To EPA’s Mercury Rule
June 29, 2005
Today, I am joining with Senators Leahy and Collins and many others to introduce a resolution of disapproval, pursuant to the Congressional Review Act, regarding EPA’s illegal and unwise rule exempting coal-fired power plants from the mercury and air toxics control requirements of the Clean Air Act.
EPA’s rule, signed on March 15, 2005, implemented the Administration’s arbitrary and capricious decision to no longer regulate each coal-fired electric generating unit using a maximum achievable control technology (MACT) standard for emissions of mercury and other toxic air pollutants. The Agency simply declared it was no longer "necessary and appropriate" to do so even without going through the delisting procedures explicitly outlined in the Clean Air Act. EPA’s rule specifically revoked the Administrator’s determination in 2000 to regulate each and every power plant unit under the MACT provisions of section 112 of the Act. When it revoked that determination, the Agency also violated a settlement agreement with an environmental group which committed the Agency to regulating hazardous air pollutants from all utilities.
In the case of mercury and hazardous air pollutants, the Administration has not acted with the best interests of public and environmental health in mind. Instead, the EPA has been forced to write rules for the benefit of big energy companies. That situation is an misuse of Federal authority and it needs to be reversed.
Mercury is a potent human neuro-toxic pollutant and has been linked to developmental problems in children who were exposed in the womb at very low levels. The major human exposure route is through consumption of contaminated fish. Scientists estimate that over 600,000 children are born annually who have been exposed in the womb to mercury levels in the mothers blood above the reference dose. Also, new evidence indicates that other non-aquatic wildlife, like the Bicknell thrush and other birds, have elevated body levels of mercury due to dry deposition which may be impacting reproduction.
Under the Congressional Review Act of 1996, Congress may disapprove a broad range of rules and regulations issued by Federal agencies by enacting a joint resolution of disapproval. That Act provides very specific and expedited procedures for consideration of this resolution in the Senate. This resolution will be referred to the Senate Committee on Environment and Public Works. If the Committee fails to act on the resolution, the cosponsors of this resolution of disapproval are committed to signing a discharge petition which would automatically place the resolution on the Senate Calendar. At that point, because the Senate has treated the motion to consider a disapproval resolution as not debatable, any member may seek to bring up the resolution to the full Senate for a vote.
If the Senate and the House pass, and the President signs such a resolution then the disapproved rule would be treated as if it had never been issued or taken effect. In addition, the Agency would be prohibited from issuing a substantially similar rule without subsequent statutory authorization.
Shortly after delisting power plants from the MACT requirements of the Clean Air Act, the Administration finalized a different rule to implement a cap-and-trade program to address mercury emissions from some power plants, but not the other significant toxic air pollutants they emit. That rule may eventually reduce mercury emissions from utilities by approximately 58% from today’s level in 2025 or later. A reasonable and defensible MACT requirement would have required minimum 70-90% reductions in mercury from each utility by not later than 2009. The Administration approach leads to at least 16 ears of greater mercury emissions than technology could easily control.
The Administration’s substitute for the clear requirements in the Clean Air Act is unauthorized, discourages development of mercury pollution control technology, and will lead to toxic hotspots around the country as companies buy and sell the rights to emit dangerous toxics.
Coal-fired power plants are the single largest source of mercury pollution in the United States, emitting approximately 48 tons annually. However, the EPA does not have a good estimate of the actual emissions coming from chlor-alkali plants. According to previous EPA projections, approximately 200 large power plants will not attempt to put on controls that will reduce mercury emissions before 2022 under the Administration’s mercury rule.
If our resolution of disapproval is successful, then EPA and the Administration would have to do what the Clean Air Act requires them to do, to reduce harmful toxic emissions from every power plant in the country as soon as possible.
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COSPONSORS OF THE RESOLUTION
TO DISAPPROVE THE ADMINISTRATION’S MERCURY RULE
1. Leahy 2. Collins 3. Jeffords 4. Boxer 5. Kerry 6. Biden 7. Cantwell 8. Carper 9. Rockefeller 10. Corzine 11. Dayton 12. Reid 13. Dodd 14. Clinton 15. Durbin 16. Feingold 17. Feinstein 18. Harkin 19. Kennedy 20. Kohl 21. Obama 22. Lautenberg 23. Levin 24. Lieberman 25. Mikulski 26. Murray 27. Reed 28. Sarbanes 29. Schumer 30. Wyden
