AIR POLLUTION

Lobbying heats up ahead of Senate mercury vote

Lobbying efforts are heating up ahead of next week's likely Senate vote on a resolution that would kill U.S. EPA's mercury and air toxics rule for power plants.

Proponents of Sen. James Inhofe's (R-Okla.) resolution of disapproval, which is expected to come to the floor by June 18, are helping wrangle the 51 votes needed for Senate passage under the Congressional Review Act (CRA).

The National Association of Manufacturers has made the issue a focus of its two-day lobbying summit this week, which spokesman Jeff Ostermayer said brought 400 manufacturers to Capitol Hill to meet with lawmakers.

"We are meeting with senators, urging them to support the CRA," Ostermayer said.

The U.S. Chamber of Commerce has also been doing "grass-roots" outreach, said spokesman Matt Letourneau, including emails to its tens of thousands of members. Letourneau said he was not aware that U.S. Chamber representatives were visiting senators in advance of the vote.

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Luke Popovich, a spokesman for the National Mining Association, said the coal industry trade group was pursuing an "all of the above" lobbying strategy in favor of the resolution, including ad buys, office visits, grass-roots efforts and member outreach.

The main targets on the CRA resolution are moderate Democrats, none of whom has yet said he will vote for it. Sens. Joe Manchin (D-W.Va.) and Ben Nelson (D-Neb.) broke party ranks last year to vote for a similar resolution for pollutants that cross state lines, but neither has said whether he will support this one.

John Coequyt of the Sierra Club, who has been involved in fighting the Inhofe resolution, said yesterday that he was confident the Senate would defeat it.

"We're feeling pretty good about the Republicans that opposed the [Sen.] Rand Paul vote," he said, referring to six moderates who opposed the previous CRA motion offered by the Republican from Kentucky. "And we're expecting to lose some Democrats, but we're not expecting to lose a large number."

'Fearmongering of the lowest order'?

The resolution would bar EPA from writing a substantially similar rule to limit mercury and other hazardous air pollutants from power plants.

But Coequyt said that some of Inhofe's industry allies are floating the idea to undecided senators that the measure would not prevent EPA from writing a subsequent mercury-only rule.

"I know that they've been in to talk to all of the moderate Democrats who are up [for election] in 2012," he said. "And they've been saying the same thing, which is there is a path forward for EPA to redo this standard."

Letourneau said that the chamber was not promoting that idea, because mercury levels are already declining and there is no need for a rule. Ostermayer said NAM's position was that if the resolutions became law, it would not preclude a new mercury-only rule.

"It's not true," Coequyt said.

"That's utter nonsense," echoed John Walke of the Natural Resources Defense Council.

"The Clean Air Act and the D.C. Circuit have long required that EPA write a rule that would cover all hazardous air pollutants emitted by a sector," he said, which for the utility sector includes a set of 80 or more different hazardous air pollutants.

Inhofe's resolution would knock down a mercury and air toxics rule and prevent a "substantially similar" rule from being written in the future to take its place. The vote would therefore have a "devastating impact" on EPA's ability to regulate any of the pollutants addressed in the invalidated rule, Walke said.

"The considerable constraint on regulating all hazardous air pollutants by virtue of the CRA resolution would extend to mercury, would extend to acid gases, would extend to lead, arsenic and all heavy medals," he said.

Scott Segal, a chief lobbyist for Bracewell & Giuliani, said that environmentalists are purposely trying to make the consequences of enactment of the CRA seem more sweeping than they are. He called the argument that the CRA would kill protections on mercury "fearmongering of the lowest order."

A mercury rule would not be substantially similar, he said, because EPA's Utility MACT rule is not really a control on mercury but on other pollutants.

"If the agency wanted to in good faith write an actual mercury rule, it would be substantially dissimilar to the rule they finalized, and they would be able to proceed," he said.

Furthermore, Segal argued that the "appropriate and necessary" finding that underlies the Utility MACT rule precluded EPA from regulating anything apart from mercury to begin with. "Yet this agency, without any augmentation of the administrative record, proceeded with an unbelievably broad rule that far exceeded what the administrative record justified," he said.

"So the administration has plenty of opportunity to proceed with a rule that is narrowly tailored to [mercury]," he added.

But Walke said this was not true, because the Clean Air Act would not allow EPA to issue standards covering mercury only that did not address other toxic emissions.

He said that Segal and his clients in industry have an interest in killing toxics regulations because they require utilities to install scrubbers and other controls that reduce particulate pollution. But those rules save lives, he said.

Sanjay Narayan, an attorney with the Sierra Club, said that Segal's "appropriate and necessary" finding is "a legal argument that [industry advocates] believe they have and we believe they don't have."

Narayan said that EPA had gone to some pains to update its appropriate and necessary finding in the MACT rule finalized last year, saying that there is good reason to go beyond mercury to regulate arsenic, acid gases and other toxics.

Furthermore, Narayan said, he expected that if the CRA motion does succeed, industry will reverse its position and that the resolution made promulgation of a mercury-only rule illegal.

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