State of New Jersey v. EPA Vacates Agency Mercury Rules

Feb 8: In the U.S. Court of Appeals, D.C. Circuit, Case No. 05-1097, consolidated with 05-1104, 05-1116, 05-1118, 05-1158, 05-1159, 05-1160, 05-1162, 05-1163, 05-1164, 05-1167, 05-1174, 05-1175, 05-1176, 05-1183, 05-1189, 05-1263, 05-1267, 05-1270, 05-1271, 05-1275, 05-1277, 06-1211, 06-1220, 06-1231, 06-1287, 06-1291, 06-1293, 06-1294. In this high profile case involving many states [CA, CT, DE, IL, ME, MA, MN, NH, NJ, NM, NY, PA, VT and WI], environmental organizations and industry groups, the Appeals Court considered petitions for review of two final rules promulgated by U.S. EPA regarding the emission of hazardous air pollutants (HAPs) from electric utility steam generating units (EGUs) -- the so-called Delisting Rule and CAMR.

The Appeals Court sets the stage saying New Jersey and fourteen additional States, the Michigan Department of Environmental Quality, the Pennsylvania Department of Environmental Protection, the City of Baltimore (Government Petitioners), and various environmental organizations (Environmental Petitioners) contend that EPA violated Section 112’s plain text and structure when it did not comply with the requirements of section 112(c)(9) in delisting EGUs. Government and Environmental Petitioners further contend that CAMR is inconsistent with provisions of section 111, and that both the Delisting Rule and CAMR should be vacated. Certain intervenors -- including various industry representatives, States, and state agencies -- join EPA in urging the lawfulness of the two rules.

The first rule removes coal- and oil-fired EGUs from the list of sources whose emissions are regulated under section 112 of the Clean Air Act (CAA), Revision of December 2000 Regulatory Finding (Delisting Rule), 70 FR 15,994 (3/29/05). The second rule sets performance standards for new coal-fired EGUs and establishes total mercury emissions limits for States and certain tribal areas, along with a voluntary cap-and-trade program for new and existing coal-fired EGUs. Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units (CAMR), 70 FR 28,606 (5/1805).

The Appeals Court said, "Petitioners contend that the Delisting Rule is contrary to the plain text and structure of section 112. In response, EPA and certain intervenors rely on section 112(n), which sets special conditions before EGUs can be regulated under section 112, to justify the rule. We hold that the delisting was unlawful. Section 112 requires EPA to regulate emissions of HAPs. Section 112(n) requires EPA to regulate EGUs under section 112 when it concludes that doing so is 'appropriate and necessary.'"

The Appeals Court states further that, "In December 2000, EPA concluded that it was 'appropriate and necessary' to regulate mercury emissions from coal- and oil-fired power plants under section 112 and listed these EGUs as sources of HAPs regulated under that section. In 2005, after reconsidering its previous determination, EPA purported to remove these EGUs from the section 112 list. Thereafter it promulgated CAMR under section 111. EPA’s removal of these EGUs from the section 112 list violates the CAA because section 112(c)(9) requires EPA to make specific findings before removing a source listed under section 112; EPA concedes it never made such findings. Because coal-fired EGUs are listed sources under section 112, regulation of existing coalfired EGUs’ mercury emissions under section 111 is prohibited, effectively invalidating CAMR’s regulatory approach. Accordingly, the court grants the petitions and vacates both rules."

New Jersey Attorney General Anne Milgram issued a release saying, "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."

Milgram added, “From the beginning 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.” Milgram's release indicates that, "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."

Vickie Patton, an attorney with Environmental Defense, which along with Sierra Club and the National Wildlife Federation was represented by Earthjustice in the lawsuit said, “The federal court agrees with the American Medical Association that EPA's flawed mercury program for coal plants is hazardous to our health. This decision is a victory for the health of all Americans, but especially for our children who can suffer permanent brain damage from toxic mercury pollution.” Alice McKeown, coal analyst for the Sierra Club said, “Coal company claims of ‘clean coal’ will now be put to the test. These mercury pollution reductions will be an important trial run to see if coal is still viable in a cleaner energy future.” The environmental groups said that approximately 1,100 coal-fired units at more than 450 existing power plants account for the emissions of 48 tons of mercury annually. Yet only 1/70th of a teaspoon of mercury is needed to contaminate a 25-acre lake to the point where fish are unsafe to eat.

Access the complete 18-page opinion (click here). Access a release from the New Jersey AG (click here). Access a release from Environmental Defense (click here). [*Air, *Toxics]