TRENTON
– Acting on a New-Jersey-led lawsuit
that challenged the Environmental Protection
Agency’s failure to require power
plants to strictly limit their harmful mercury
emissions, a federal appeals court today
vacated two EPA rules that failed to follow
the requirements of the Clean Air Act.
In
ruling as it did, the U.S. Court of Appeals
for the District of Columbia agreed with
New Jersey and other states, as well as
numerous environmental petitioners that
EPA cannot avoid its legal duty to promulgate
strict limits on mercury emissions from
all power plants -- and do so expeditiously.
The ruling means elimination of the EPA’s
cap-and-trade approach to regulating mercury
emissions. Cap-and-trade allows power plants
to purchase emissions reduction credits
from other plants that have cut emissions
below targeted levels, rather than meet
strict emission levels by installing stringent
pollution controls to reduce mercury emissions
at their own plants.
The
lawsuit resulting in today’s U.S.
Court of Appeals ruling was filed by New
Jersey on behalf of a coalition made up
of 18 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 federal 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 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.
“The
Court of Appeals decision is an important
victory for New Jersey in its ongoing effort
to protect the public and the environment
from the harmful effects of mercury,”
said Attorney General Anne Milgram.
“From the beginning,” added
Milgram, “we have maintained that
the EPA adopted standards for regulating
mercury, a dangerous neurotoxin, which were
weak, ineffectual and ran counter to the
clear intent of the Clean Air Act.”
”Our persistence has paid off in a
tremendous victory that will result in a
healthier environment for New Jersey's residents
-- especially our children,” said
Department of Environmental Protection Commissioner
Lisa P. Jackson. “I am thrilled that
the United States Court of Appeals has agreed
with us by voiding the misguided federal
cap-and-trade approach. It simply does not
work for emissions of a neurotoxin as dangerous
as mercury.”
Coal-fired
power plants are the largest source of uncontrolled
mercury emissions, generating 48 tons of
mercury emissions per year nationwide. EPA
finalized its cap-and-trade system for regulating
mercury emissions from power plants in May
2006 despite reports that called into question
the conclusions underlying the rule. Research
funded by the EPA itself found that wet
mercury deposition rates from local coal-fired
industrial sources were many times higher
than EPA projections. The research, conducted
in Steubenville, Ohio, bolstered arguments
that there was significant potential for
uncontrolled local emission sources to perpetuate
mercury hot-spots.
New Jersey and the other states and petitioners
that challenged the EPA contend 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 maintain 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. The
rules are expected to reduce in-state mercury
emissions by more than 1,500 pounds annually,
and reduce emissions from New Jersey’s
coal-fired power plants by about 90 percent.
The government coalition led by New Jersey
involved California, Connecticut, Delaware,
Illinois, Maine, Maryland, Massachusetts,
Michigan, Minnesota, New Hampshire, New
Mexico, New York, Pennsylvania Department
of Environmental Protection, Rhode Island,
Vermont, Wisconsin and the City of Baltimore.
Also participating were a number of environmental
organizations, including Earthjustice, a
non-profit public interest law firm. Attorney
James Pew, argued the procedural issue in
the D.C. Circuit on behalf of the state
government and environmental petitioners.
Deputy Attorneys General Kevin Auerbacher
and Jung Kim, of the Division of Law’s
Environmental Enforcement Section, handled
the appeal on behalf of New Jersey.
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