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For Immediate Release:  
For Further Information:
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February 8, 2008  

Lee Moore
609-292-4791

Office of The Attorney General
- Anne Milgram, Attorney General

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Federal Appeals Court Rules in Favor of NJ and Vacates EPA Mercury Rules

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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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