– Attorney General Anne Milgram today
lauded the U.S. Supreme Court’s denial
of an appeal, filed last year by a coalition
of utilities, that sought reversal of a federal
court decision vacating the federal government’s
controversial cap-and-trade approach to regulating
mercury emissions from power plants.
court’s denial of an appeal petition
from the Utility Air Regulatory Group follows
a motion earlier this month by the U.S. Environmental
Protection Agency (EPA) to withdraw its own
appeal, and ends a long legal fight by New
Jersey and other states to compel the federal
government to issue tough new standards for
mercury and other toxic air emissions from
denial by the U.S. Supreme Court represents
another victory for the people of New Jersey,
and for our environment,” said Attorney
General Milgram. “As of today, the protracted
legal battle that has delayed proper regulation
of mercury emissions from power plants is
over, and the practice of allowing those plants
to spew harmful quantities of a dangerous
neurotoxin into our air in violation of federal
law is at an end.”
New Jersey and 16 other states sued the federal
government in 2006 for failing to impose strict
limits on mercury emissions from power plants
and, instead, implementing a cap-and-trade
approach whereby power plants could buy emissions
credits from other plants that had already
cut emissions below targeted levels. The states
maintained that cap-and-trade contributed
to “hot spots” for mercury, a
neurotoxin linked to birth defects, learning
disabilities and neurological problems.
In February 2008, the U.S. Court of Appeals
for the District of Columbia sided with the
states and agreed that EPA could no longer
avoid its legal duty to impose strict limits
on mercury emissions from all power plants
– and do so expeditiously.
subsequently filed an appeal with the U.S.
Supreme Court. However earlier this month,
in one of the first actions taken by newly-appointed
EPA Administrator Lisa P. Jackson, the federal
government moved to dismiss its appeal petition
and pledged to move swiftly in developing
tough new mercury standards for power plants.
The Supreme Court today granted EPA’s
request that its own appeal petition be dismissed.
the wake of EPA’s action, the Utility
Air Regulatory Group – the group is
an association of individual electric-generating
companies and national trade organizations
-- refused to withdraw its own appeal petition
before the Supreme Court.
it filed a reply brief restating its argument
that the cap-and-trade approach was a legal
means of regulating toxic emissions from power
plants under a less rigid section of the federal
Clean Air Act than that cited by the states.
Today’s Supreme Court denial amounts
to a rejection of that argument, and clears
the way for EPA to require power plants to
install “maximum available control technologies”
for mercury, an action New Jersey and other
states have long advocated.
original lawsuit that resulted in the February
2008 U.S. Court of Appeals ruling in favor
of the states maintained that EPA illegally
removed coal and oil-fired power plants from
the list of regulated source categories under
a section of the Clean Air Act that requires
strict regulation of hazardous air pollutants,
removing power plants without meeting the
Clean Air Act’s stringent criteria for
doing so, EPA under its prior leadership sought
to avoid requiring power plants to regulate
their mercury emissions by using the “maximum
achievable control technology.” Instead,
EPA sought to allow power plants to trade
mercury emissions to meet a national “cap.”
Jersey and the other states maintained that
a strict mercury emissions standard based
on “maximum achievable control technology”
– as required by the Clean Air Act –
could reduce mercury emissions to levels approximately
three times lower than the cap established
under EPA’s cap-and-trade system, and
could do so more quickly.
The states contended that EPA’s cap-and-trade
approach promised little in the way of immediate
mercury emission reductions from the current
48 tons per year nationwide, and would delay
even modest reductions by more than a decade.
Power plants are the largest source of mercury
in the nation. Power plants also emit many
of the hazardous air pollutants listed in
Section 112 of the Clean Air Act for EPA regulation.
Mercury pollution has contaminated the nation’s
waters and other natural resources, and nearly
all of the 50 states have issued mercury-related
Attorney General Kevin Auerbacher and Deputy
Attorney General Jung Kim of the Division
of Law’s Environmental Enforcement and
Homeland Security Section handled this matter
on behalf of the state.