Ehrlich bars Md. challenge of EPA rules

Curran sought to join suit over pollution standards

Mercury emissions at issue

Administration prefers to seek talks, MDE says

June 01, 2005|By Tom Pelton and JoAnna Daemmrich | Tom Pelton and JoAnna Daemmrich,SUN STAFF

The Ehrlich administration has blocked Maryland Attorney General J. Joseph Curran Jr. from going to court to challenge new federal regulations that environmental groups say will hinder efforts to curb air pollution from power plants.

Curran, a Democrat, had sought Republican Gov. Robert L. Ehrlich Jr.'s approval to join 12 other states in a legal effort to overturn rules announced by the Bush administration in March. The rules exempt coal-fired power plants from tough mercury pollution-control requirements, instituting an emissions trading program instead.

Ehrlich said no to Curran's proposal, both offices said yesterday.

Neither Curran, who has been attorney general for 18 years, nor Stephen H. Sachs, his predecessor for eight years, could recall a similar example of a governor denying such a request.

But both said that the governor has the right to do so, because the attorney general -- although independently elected -- serves as legal adviser to the state administration, which as the client has final authority.

"I think the national law that would best protect the Chesapeake Bay and the people of Maryland is the law we have now, not de-listing power plants as a source of air pollution to be regulated," Curran said yesterday. "I prefer the approach of our sister states."

Henry Fawell, a spokesman for Ehrlich, said the governor was following the "recommendations of the scientists at the Maryland Department of the Environment" and referred questions to that agency.

Julie Oberg, an MDE spokeswoman, said the department is concerned that the Bush administration's approach to mercury is not strong enough. Instead of filing a lawsuit, the agency believed it would be more productive to ask for a meeting with new EPA administrator Stephen Johnson to request stronger national rules.

"We have requested a meeting in order to try to persuade the Environmental Protection Agency to have more reductions [of mercury] in a shorter time frame," Oberg said. "If our meeting doesn't go as we'd like it, we can still join the lawsuit."

Environmental groups, including the Chesapeake Bay Foundation and the Riverkeeper Alliance, criticized the Ehrlich administration's approach, saying the rules have been made final by the EPA and the deadline for comments and most legal challenges has passed.

Pennsylvania, Delaware, New York, California and Massachusetts are among the states that have filed challenges to the Bush administration's mercury-control regulations, which were finalized in March after a lengthy public-comment session.

Maryland joined many of these states recently when they sued power plants in Ohio and West Virginia for sending air pollution downwind toward the East and the Chesapeake region.

The new mercury regulations exempt power plants from requirements in the Clean Air Act that all smokestacks must install filters or other pollution-control devices to achieve maximum possible emission reductions.

Instead, Bush's EPA adopted a free-market approach favored by industry, setting mercury-emission limits for power plants, but allowing them to pay for the right to exceed those caps and swap pollution credits with cleaner plants.

The EPA said it aims to reduce mercury air pollution by 69 percent by 2018 through this "cap and trade" program. But environmental groups said a more likely result is a 55 percent reduction by 2030, and complained that this is much slower than the 90 percent reduction by 2008 that could be achieved by enforcing requirements in the Clean Air Act.

Mercury air pollution is released when coal and other substances are burned in power plants and incinerators. Rain washes the pollutant into the Chesapeake Bay and other waterways, where it accumulates in fish and can damage the brains of developing infants when it is eaten by pregnant women.

The deadline for filing legal challenges to the first part of the Bush mercury rules expired at midnight last night. The Ehrlich administration has another 60 days to challenge a second part of the regulations, governing the mercury-emissions trading program.

But this part of the program is dependent on the first section of the regulations, so it would make no sense to challenge the second part and not the first, said Scott Edwards, legal director of the Waterkeeper Alliance, an environmental advocacy organization. "The time to comment is over, the time to act is now," he said.

Eryn Witcher, spokeswoman for the EPA, said the agency plans to set up a meeting between Maryland Environment Secretary Kendl P. Philbrick and EPA officials. "We look forward to meeting with the governor's office and look forward to discussing the merits of the mercury rule," Witcher said.

Maryland Senate President Thomas V. Mike Miller sharply questioned Ehrlich's moves, saying the governor was looking out for "corporate interests" and was "trying to appeal to his donor base."

"If there is a person in his administration who cares about the environment, that person is obviously getting hooted down," Miller said.

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