Mercury Toxins Continue

The impact of both rules will cost utilities -- and, ultimately, electricity users -- about $50 billion over the next decade and could trigger shortages in critical skills, such as boilermakers needed to refit the nation's 1,300 coal-fired power plant boilers, according to the agency.

The emissions-trading system proposed by the EPA could be stymied, however, if court challenges delay the start of trading and if rejection by numbers of states shrinks the market for emissions credits. Under the proposed "cap and trade" system, states assign cuts in emissions to power plants in the form of credits, which they are required to have in order to emit a given quantity of a pollutant. Utilities that reduce pollution levels more than they are required are then able to sell their unused credits to companies that may need them to meet their assigned quotas.

Because 45 states have now found dangerous levels of mercury in fish and the toxicity primarily affects children, the Bush administration will have difficulty arguing that the issue isn't as simple or as easy to deal with as environmental groups assert. EPA studies show that industrial emissions of mercury declined in the U.S. to 47 tons currently from 209.6 tons in 1990, yet findings of mercury in fish multiplied partly because more states began testing for it.

Utilities are eager to move ahead. "Environmental groups have shown themselves to be incorrigible on this issue," argued Scott Segal, a Washington lawyer who represents six large coal-fired utilities. If the mercury rule is delayed by litigation, he asserted, the "ultimate loser will be the public."

The scope of the problem, meanwhile, goes beyond U.S. shores. According to the agency, mercury released into the air becomes a global pollutant and overseas sources, including industrial emissions from China, are the "dominant" sources in the Western U.S. The EPA also says that 80% of fish sold in the U.S. comes from overseas.

Write to John J. Fialka at john.fialka@wsj.com¹

The Bush Administration understood the contempt for the law displayed by this Clinton interpretation, and in 2003 it issued rules clarifying what kind of modification would and wouldn't trigger application of NSR. But at the same time it continued to pursue the old Clinton-era cases in court -- and for no other discernable reason than fear of bad publicity from the environmentalists.

Yet NSR is the paradigmatic example of the old command-and-control regulation. In arguing that it must be applied to the various power plants now in question, the Administration is arguing the opposite of its public policy position, which is that the cap-and-trade system is sufficient.

And what political credit has the Administration received for selling its policy soul in this way? Less than zero. Consider the environmentalist reaction to this week's new mercury rule. "This is the most dishonest, dangerous and illegal rule I have ever seen come out of the EPA," says John Walke of the Natural Resources Defense Council. "It's unconscionable EPA is allowing power companies to trade in a powerful neurotoxin," says S. William Becker, who represents two groups of local environmental regulators.

Mr. Becker at least is articulating a position with a shred of plausibility to it. That is, mercury is arguably uniquely toxic compared with the other pollutants regulated by a cap-and-trade system, which could in theory leave particular sources emitting unacceptably high levels. But in reality mercury emissions from clean American power plants are only a tiny fraction of the global total, which is why this is the first time any Administration has thought to regulate mercury, in any fashion. The main source of mercury toxicity in America is fish, often originating overseas, not in smokestacks in the Tennessee Valley. And there was no similar environmentalist outcry when previous Administrations (see Clinton) did nothing about the problem.

Hyperbole like that from Messrs. Walke and Becker explains why the traditional environmental community has discredited itself in recent years, and why it was irrelevant during the last election. So the Bush Administration might as well go ahead and get honest and consistent about its clean air policy by dropping the NSR lawsuits. Are there any worse things left for these people to say about it?