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For Immediate Release:  
For Further Information:
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February 23, 2009  

Lee Moore
609-292-4791

Office of The Attorney General
- Anne Milgram, Attorney General

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Attorney General Welcomes U.S. Supreme Court Denial of Appeal by Utility Group on Regulation of Harmful Mercury Emissions

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TRENTON – 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.

The 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 power plants.

“Today’s 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.

EPA 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.

In 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.

Instead, 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.

The 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, 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.”

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.

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 fish advisories.

Deputy 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.

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