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February 6, 2009

Contact: (DEP) Elaine Makatura (609) 292-2994
(OAG) Lee Moore (609)-292-4791

Department of Environmental Protection - Mark N. Mauriello, Commissioner
Office of the Attorney General - Anne Milgram, Attorney General


TRENTON -Attorney General Anne Milgram today applauded a decision by the federal government to drop its appeal of a prior federal court ruling that vacated Environmental Protection Agency (EPA) rules concerning power plant mercury emissions and did away with the EPA’s controversial cap-and-trade approach to regulating such emissions.

              On February 8, 2008, the U.S. Court of Appeals for the District of Columbia agreed with New Jersey and other states that EPA cannot avoid its legal duty to promulgate strict limits on mercury emissions from all power plants – and do so expeditiously. Among other things, the ruling meant elimination of the EPA’s cap-and-trade approach, under which power plants can purchase emissions credits from other plants that have cut emissions below targeted levels rather than meet strict emission standards by installing pollution controls.  EPA subsequently filed a petition for certiorari with the U.S. Supreme Court seeking permission to be heard on appeal.

                  Today, the EPA moved to dismiss its own petition to the Supreme Court. The action came one week after Attorney General Milgram, joined by attorneys general or environmental officials from 14 other states, wrote to the federal government urging that the appeal petition be withdrawn, and that the EPA move forward with development of stringent new standards for regulation of harmful mercury emissions from power plants.

            “The decision by the federal government to withdraw its petition and focus on creating tough new standards governing mercury emissions from power plants is a victory for the people of New Jersey, and for our environment,” said Attorney General Milgram.

          “I applaud new EPA Administrator Lisa Jackson for taking this decisive action and ending this protracted legal battle,” Milgram added. “The legal fight has only delayed important progress, and allowed power plants to continue to emit toxic air pollutants contrary to the federal Clean Air Act.”
”This is good news for the people of New Jersey,”  said Acting DEP Commissioner Mark Mauriello.  “The EPA's strong leadership in deciding to throw out the ruling on dangerous mercury emissions positions all states to better protect our residents -- particularly our children, who are the most vulnerable.”

The lawsuit that resulted in the February 2008 U.S. Court of Appeals ruling was filed by New Jersey on behalf of a coalition made up of 17 states or state agencies and one city.  The suit 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, including mercury.

 By 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,” an approach that encouraged the development of mercury “hot spots” and endangered the health of children.

    New 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.  (As a state, New Jersey recently adopted its own tough restrictions on mercury emissions from coal-fired power plants, iron and steel melters, hospital and medical waste, and municipal solid waste incinerators.)

 “From the beginning,” said Attorney General Milgram, “we have maintained that the EPA, under its former leadership, adopted standards for regulating mercury -- a dangerous neurotoxin -- which were weak, ineffectual and ran counter to the clear intent of the Clean Air Act. With this decision, under new leadership, to drop its appeal and focus on developing strict regulatory standards, the EPA has taken a major step in the right direction.”  
Power plants are the largest source of mercury in the nation. Power plants also emit many of the hazardous pollutant 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 fish advisories.



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Last Updated: April 16, 2009