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Federal Appeals Court Strikes Down EPA’s Mercury Rules

CONTACT: William H. Sorrell, Attorney General, (802) 828-0269

February 8, 2008 - Attorney General William H. Sorrell announced today that the United States Appeals Court for the District of Columbia has struck down two rules enacted by the federal Environmental Protection Agency (EPA) applying unlawfully lenient standards for mercury emissions from power plants. A coalition of 16 states, including Vermont, and various environmental groups had challenged the rules because the rules would have improperly allowed for higher mercury emissions and would have perpetuated “hot spots” of local mercury deposition.

“Once again, EPA is on the wrong side of an important environmental issue,” said Attorney General Sorrell. “EPA’s view that it wasn’t necessary or appropriate to regulate power plants as a source of hazardous mercury emissions defied common sense. It is great to see the court set EPA straight,” he added.

The states challenged two related EPA mercury rules. In the first rule (the “de-listing rule”), EPA removed power plants from the list of facilities that are subject to stringent pollution controls under the hazardous air pollutant (“HAP”) provisions of federal Clean Air Act. In the second rule (the “cap-and-trade rule”), EPA announced that it would instead set up a cap-and-trade system for mercury emissions. The states argued that EPA was not allowed to remove power plants from the HAP program without going through certain de-listing procedures, and also that a cap-and-trade program for mercury emissions was unlawful. A three-judge panel of the U.S. Court of Appeals for the District of Columbia agreed that EPA’s delisting rule was unlawful and the court struck down the rule. Because the cap-and-trade rule relied on the legality of the delisting rule, the court also vacated the cap-and-trade rule.

In 2000, EPA studied the health hazards posed by toxic emissions from power plants, including mercury, and determined that power plants must be regulated under Section 112 of the Clean Air Act. Section 112 requires that the “maximum achievable control technology” (“MACT”) be used to control those emissions. MACT controls would have reduced emissions at each facility by about 90 percent. However, in 2005, EPA reversed its prior determination that regulation under Section 112 was “appropriate and necessary” to protect public health and it de-listed power plants from regulation under that section.

In its place, EPA enacted a cap-and-trade rule that, even when fully implemented, would have allowed for three times the mercury emissions from power plants under Section 112. In addition, the cap-and-trade rule would have extended the deadline for compliance from 2008 to 2018, with full reductions not expected until at least 2026. Moreover, a cap-and-trade program, while sometimes appropriate for other air pollutants such as sulfur dioxide and nitrogen oxides, is inappropriate for mercury because it can allow localized deposition of mercury. This can lead to “hot spots” and even “hot regions” that can significantly impact the health of individual communities.

Coal-fired power plants are the largest source of uncontrolled mercury emissions, generating many tons of mercury emissions per year nationwide. Through mercury deposition, mercury enters the food chain and ultimately is consumed by humans, resulting in severe harm, particularly when ingested by pregnant or nursing mothers or young children. Children can suffer permanent brain and nervous system damage from exposure to even low levels of mercury. For example, mercury exposure can cause attention and language deficits, impaired memory, and impaired visual and motor functions.

Exposure to the most toxic form of mercury comes primarily from eating contaminated fish and shellfish. Certain fish from waters in 45 of the 50 states have been declared unsafe to eat as a result of poisoning from mercury. At least 40 percent of lakes in Vermont and New Hampshire contain fish with mercury levels in excess of EPA’s standards.

The coalition of states was led by the New Jersey Attorney General’s Office, and the case is entitled State of New Jersey, et al. v. EPA, No. 05-1097.

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