• Environmental Groups Move to Stop New Coal Plants Based on Mercury Emissions
  • May 19, 2008
  • Law Firm: Troutman Sanders LLP - Atlanta Office
  • The Sierra Club, joined by various other environmental groups, began this week to issue formal notice of its intent to sue under the Clean Air Act (“CAA”) to a number of utilities that are currently managing new coal-fired power plant projects.  The suits threatened by the Sierra Club will attempt to invalidate the permits authorizing the construction of these recently permitted plants, some of which are already under construction, based on a recent ruling of the U.S. Court of Appeals for the D.C. Circuit. 

    In February of this year, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit struck down the Environmental Protection Agency’s (“EPA’s”) Clean Air Mercury Rule (“CAMR”), designed to regulate mercury emissions under the CAA through a cap and trade program.  The court’s decision in New Jersey, et al. v. Environmental Protection Agency also vacated EPA’s decision to discontinue regulating coal-fired electric utility steam generating units (“EGUs”) under a separate provision of the CAA.  The formal notifications issued this week by the Sierra Club follow the Natural Resources Defense Council’s announcement following the D.C. Circuit decision that it would take action to block plans for thirty-two new coal-fired power plants. 

    In the CAA, Congress listed over 180 specific hazardous air pollutants requiring regulation, and charged EPA with the responsibility to “list” specific categories of major sources of the regulated pollutants identified, establishing emission standards for each category based on the Maximum Achievable Control Technology (“MACT”) available for each source category.  Coal-fired EGUs were initially listed by EPA in 2000 under the Clinton administration.  However, based on revised findings, and in conjunction with its promulgation of CAMR, EPA revised its previous findings in 2005 and delisted coal-fired EGUs, effectively rendering the application of MACT standards no longer necessary or appropriate.  Because the D.C. Circuit’s decision in New Jersey et al. v. Environmental Protection Agency vacated EPA’s delisting action, the Sierra Club and other environmental groups maintain that coal-fired EGUs have been, in effect, re-listed and are once again subject to MACT standards for the control of mercury emissions.

    The Sierra Club has issued notice letters threatening suit to owners or operators of at least fourteen coal-fired EGU projects across several states, including Entergy, Peabody Energy, Dynegy/LS Power, Louisiana Generating (a unit of NRG Energy), Duke Energy, and Energy Future Holdings (formerly TXU).  Its multi-state effort may ultimately impact over thirty projects in thirteen states.  The notice letters allege that permits issued to allow EGU construction were improperly issued for failure to impose MACT standards and therefore violate the CAA.  The letters provide a 60-day notice during which the owners or operators may remedy the alleged noncompliance.  If the alleged noncompliance is not remedied within the time period provided, Sierra Club may file suit in the federal districts where the proposed power plants would be located.