States & Groups Hail Supreme Court Refusal Of CAMR Case

Feb 23: The U.S. Supreme Court refused to hear an appeal filed last year by a coalition of utilities, in the case of New Jersey v. EPA, that sought reversal of a Federal Appeals court decision vacating the federal government’s controversial cap-and-trade approach to regulating mercury emissions from power plants -- the so-called “Clean Air Mercury Rule” (CAMR) [See WIMS 2/8/08]. Environmental groups said the High Court's decision "invalidates the Bush rule and sets a new course that will help protect America’s waterways from toxic mercury pollution." New Jersey Attorney General Anne Milgram lauded the Supreme Court’s denial and said it, "represents another victory for the people of New Jersey, and for our environment. 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.”

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 [See WIMS 2/9/09], 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. New Jersey, 16 other states, dozens of Native American tribes, public health and environmental groups, and organizations representing registered nurses and physicians were involved in the case charging the Federal government failed to impose strict limits on mercury emissions from power plants and, instead, implemented 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 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 also 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 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. A release from the New Jersey Attorney General indicates that, "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.

New Jersey says 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.

John Walke, senior attorney for the Natural Resources Defense Council (NRDC) said, “Today’s good news is due in no small part to the leadership of the Obama administration, in renouncing the harmful Bush administration actions and embracing EPA’s responsibilities to protect the American people against mercury and other toxic pollution. Administrator Jackson has a special opportunity to clean up harmful air pollution from power plants once and for all, and her leadership so far bodes well for the future.”

Ann Weeks, attorney for Clean Air Task Force said, “The Supreme Court has now confirmed that EPA must follow the law as it is written. We are looking forward to working on rules that reflect the most stringent controls achievable for this industry, as the Clean Air Act requires. That’s what is needed now, if we are ever to alleviate the problem of mercury contamination in fish and wildlife.” The Clean Air Task Force includes U.S. PIRG, Ohio Environmental Council, Natural Resources Council of Maine, and Conservation Law Foundation. Among the groups involved in last year’s successful court challenge was Earthjustice, who argued the case before the lower court on behalf of Environmental Defense Fund, National Wildlife Federation and Sierra Club.

Access a release from the NJ Attorney General (click here). Access a release from the NRDC and various environmental groups (click here). Access the Supreme Court docket (click here); and (click here). [*Air, *Toxics]