On Feb. 23, 2009 the U.S. Supreme Court declined to consider an appeals court decision that had struck down EPA's Clean Air Mercury Rule, an emissions cap-and-trade approach related to the regulation of mercury from coal- and oil-fired power plants. It appears EPA will now develop new mercury standards for power plants.

In the D.C. Circuit Court decision last year, the court vacated the rule, finding that EPA had improperly removed power plants from a list of regulated source categories under a section of the Clean Air Act that requires strict regulation of hazardous air pollutants, including mercury. Following this decision, both EPA and the Utility Air Regulatory Group, a group of electric utility companies and industry trade groups, petitioned the Supreme Court to review the mater. Then earlier this month, the Obama Administration withdrew its petition, conceding that EPA had not made the health and environmental impact findings required by the Clean Air Act to remove a source category. Left with the industry group's petition, the Supreme Court denied cert. (Docket 08-352) on Monday.

Despite the likely restart of a federal approach to develop mercury regulations, keep in mind that the Pennsylvania Mercury Rule remains in the courts. Details can be found in one of our earlier postings.