A federal judge ordered the U.S. Environmental Protection Agency (EPA) on April 13 to release documents related to an analysis of alternatives to its controversial power plant mercury 'cap and trade' program. After the agency rejected a July 2004 request for the documents under a Freedom of Information Act (FOIA), Massachusetts Attorney General Thomas F. Reilly filed a lawsuit in March 2005 against EPA to obtain the information. Documents in question pertain to analyses comparing two different approaches for regulating mercury emissions. The first approach, favored by industry and adopted by EPA in May 2005, was the 'cap and trade' or 'emissions trading' approach. The second, favored by environmental groups and public health officials, was the 'maximum achievable control technology' or MACT approach. EPA produced the detailed modeling and analysis to evaluate the ability of each approach to regulate mercury emissions from coal-fired power plants--the nation's largest source of mercury emissions. The Attorney General Reilly filed a formal FOIA request with EPA for the analyses in July 2004. EPA rejected the request claiming the documents were part of its 'deliberative process' and, therefore, exempt from disclosure under FOIA. After hearing the case, however, Federal Magistrate Judge Robert Collings ruled that EPA could not withhold the analysis documents, because they were from investigative tools that produced facts and not the agency deliberative process or opinions. Critics of EPA's mercury program maintain the withheld documents represent a clear case of EPA preventing access to information in order to limit criticism and accountability. According to the Massachusetts Attorney General's office, "We will now be able to see the documents that the EPA has tried to keep hidden. By making the facts available, the public will now be able to understand the choices the EPA is making and whether the agency is meeting its important responsibility to protect the public health and welfare." Open government advocates hope that the court decision will compel other agencies to be more forthcoming in response to FOIA request. Currently, agencies use exemptions of 'deliberative process' and 'pre-decisional' frequently to withhold information requested through the FOIA process. Judge Collings’ opinion in the mercury case may establish a clearer limit on the types of information that can qualify as deliberative. Collings opinion that the results of investigative tools cannot be withheld as deliberative could have repercussions for disclosure within all federal agencies. The mercury cap and trade scheme adopted by EPA has proved to be extremely controversial and has already received a legal challenge, the outcome of which may be influenced by the release of the analysis documents. The program sets an annual cap, or limit, on the amount of mercury power plants may emit. Facilities below the cap can then sell the 'right to pollute' to facilities above the cap. The goal is to keep the annual aggregate mercury releases from all power plants below a set level. However, as environmental groups and health agencies have pointed out, this approach fails to account for the local problems caused by high emissions of mercury, which is a dangerous neuron-toxin. Essentially, the cap and trade approach would do nothing to prevent the creation of toxic hot-spots where certain communities would be exposed to disproportionately high levels of mercury. The documents that EPA has been ordered to release may shed new light on many of the issues and controversies surrounding the rule. Timeline of Events

• In February 2005, EPA's Inspector General accused EPA officials of deliberately skewing their analyses of the cap and trade approach to make it appear more effective than it really is.
• In March 2005, the Government Accountability Office (GAO) reported that EPA distorted the analysis to favor its cap and trade proposals and did not provide adequate documentation of the technology-based MACT option.
• In May 2005, when the rule was officially published, 13 states led by New Jersey, and many environmental groups sued the EPA in federal appeals court challenging the mercury trading program. The case is pending in the U.S. Court of Appeals for the D.C. Circuit.
• In Oct. 2005, EPA responded to petitions filed by several states, tribes, industry, and environmental groups by reopening the mercury rule for public comment which closed Dec. 19, 2005.