WASHINGTON, DC, February 8, 2008 (ENS) – Environmental and public health groups as well as 14 states, one city, and native tribes declared victory as a federal appeals court today vacated two rules issued by the U.S. Environmental Protection Agency that failed to set strict limits on mercury emissions from power plants.

The U.S. Court of Appeals for the District of Columbia ruled that the agency’s 2005 “Clean Air Mercury Rule,” violates the Clean Air Act by evading mandatory cuts in toxic mercury pollution from power plants that burn coal and oil.

The EPA now has two years to develop mercury emissions standards for existing power plants.

The decision invalidates the EPA’s controversial cap-and-trade approach to regulating mercury emissions that would not have taken full effect until well beyond 2020.

Cap-and-trade allows power plants to purchase emissions credits from other plants that have cut emissions below targeted levels, rather than installing pollution controls at their own plants.

Power plants are sources of mercury, arsenic, lead, other heavy metals, and dioxins. Because these toxic pollutants are all classified as “hazardous,” the Clean Air Act requires the EPA to identify their sources and develop the most stringent standards to control emissions from those sources.

The court ruled today that the EPA erred when it took power plants off the list of hazardous pollution sources when issuing its Clean Air Mercury Rule.

The lawsuit was filed by New Jersey on behalf of the coalition of states. The BL England power plant in southern New Jersey burns coal and oil.

New owners Rockland Capital Energy
Investments pledged to reduce the
facility’s mercury and other hazardous
emissions. (Photo by Curt Bergesen)

Calling the decision “an important victory,” New Jersey Attorney General Anne Milgram said, “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.”

“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 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.”

Some 450 existing coal and oil burning power plants emit 48 tons of mercury into the air each year. 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.

More than 40 states have warned their residents to avoid consuming various fish species due to mercury contamination, and more than half of those mercury advisories apply to all water bodies in the state.

The states were joined in the legal challenge by the American Academy of Pediatrics, the American Public Health Association, the American Nurses Association and Physicians for Social Responsibility, representing more than 300,000 doctors, nurses, medical researchers and health care professionals.

“Today’s decision is a huge victory as it requires EPA to get back to the business of protecting people’s health rather than higher profits for electric utilities,” said John Suttles, attorney with the Southern Environmental Law Center who argued on behalf of the public health organizations.

The ruling will have an immediate effect on the nation’s approximately 100 proposed new coal-fired power plants. According to the ruling, new plants must determine on a case-by-case basis how to control mercury pollution at least as well as the best-controlled similar source.

The Conemaugh Generating Station in
western Pennsylvania burns coal and oil.

“The mercury emitted by our nation’s coal-fired power plants poses serious health risks for all Americans,” said Georges C. Benjamin, MD, executive director of the American Public Health Association. “Congress and now the courts are recognizing the need for stronger environmental protections to safeguard human health. We call upon the EPA to uphold the intent of Clean Air Act and work to eliminate mercury emissions.”

Mercury emitted from power plants is deposited in water bodies, where it is converted to its most toxic form, methylmercury. This chemical is taken up by fish and then eaten by humans. The EPA estimates that as many as than 600,000 children are born each year with unhealthy levels of methylmercury in their bodies.

Despite this figure, EPA adopted the mercury rule, ignoring the counsel of its own Children’s Health Public Advisory Committee and thousands of health professionals nationwide.

“For pediatricians, who see daily the direct impact dangerous environmental emissions have on children’s health, the D.C. Circuit Court’s decision is an important victory for children, families and communities” said American Academy of Pediatrics’ President Renée R. Jenkins, MD.

“The federal court agrees with the American Medical Association that EPA’s flawed mercury program for coal plants is hazardous to our health,” said Vickie Patton, an attorney with Environmental Defense, which along with Sierra Club and the National Wildlife Federation was represented by Earthjustice in the lawsuit.

“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,” Patton said.

The coal-fired Dallman power plant
near Springfield, Illinois (Photo by
Stephen B. Davis)

The lawsuit maintained that the 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.

The EPA sought to avoid requiring power plants to regulate their mercury emissions by using the criteria of “maximum achievable control technology.”

“The court has now told EPA in no uncertain terms to 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,” said Ann Weeks, attorney for Clean Air Task Force who represented U.S. PIRG, Ohio Environmental Council, Natural Resources Council of Maine, and Conservation Law Foundation in the case.

“That’s what is needed now, if we are ever to alleviate the problem of mercury contamination in fish and wildlife,” she said.

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.

“Today’s ruling should show power plant companies and the EPA once and for all that they may cheat and delay required clean-up obligations, but the law will catch up to them,” said John Walke, attorney with the Natural Resources Defense Council. “Electric power plants are America’s worst polluters of mercury, smog, soot and global warming pollution, and their days of reckoning are long overdue.”

“The Bush administration cannot ignore its responsibilities to bring power plants’ mercury pollution under control,” said Earthjustice attorney James Pew. “We hope the administration will gain some new respect for the law in its last year and start working to protect Americans from pollution and stop working to shield polluters from their lawful cleanup obligations.”

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TRENTON, New Jersey, January 23, 2008 (ENS) – Attorney General Anne Milgram announced today that New Jersey has signed on to a multi-state letter to the U.S. Environmental Protection Agency expressing concern that the EPA is “unreasonably delaying” action it was directed to take by the U.S. Supreme Court concerning regulation of greenhouse gas emissions from vehicles.

In addition to New Jersey, the letter to the EPA has been signed by 16 states – Massachusetts, Arizona, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Minnesota, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington state. The City of Baltimore and the City of New York have signed on as well.

Addressed to EPA Administrator Stephen Johnson, the letter requests that EPA furnish specifics about how it intends to comply with the court mandate in writing by February 27, 2008.

The letter warns that further “unreasonable delay” will result in legal action to enforce the court’s directive.

The Supreme Court ruled last April that the EPA, despite its assertion to the contrary, has authority under the federal Clean Air Act to regulate greenhouse gas emissions from cars and trucks. The court also found that the EPA used improper grounds to deny a rulemaking petition filed by the states that asked the agency to do so.

The court ordered the EPA to revisit the states’ rulemaking petition, to determine whether greenhouse gas emissions from vehicles cause harmful air pollution and, if so, to develop regulations governing such emissions.

“On April 2, 2007, the Supreme Court established EPA’s responsibility to regulate greenhouse gases under the federal Clean Air Act,” said Massachusetts Attorney General Martha Coakley. “The one year anniversary of the court’s ruling is fast approaching, and it is long past time for EPA to begin exercising its regulatory authority. Further continued delay is not acceptable.”

Exhaust from vehicles
contributes to climate change,
scientists warn. (Photo courtesy
Iowa DNR)

According to Milgram, EPA indicated on several occasions in 2007 that it was moving forward on the Supreme Court’s directive and that it intended to announce draft regulations for greenhouse gas emissions from vehicles by year’s end. Despite its commitment, which the EPA formalized in a regulatory plan published in December 2007, the EPA allowed 2007 to come and go without taking any action, and has provided no specific sense of when or how it intends to proceed.

“Despite a compelling body of scientific evidence concerning the relationship between air pollutants and global warming, and despite having been directed to act on the regulation of greenhouse gases by the U.S Supreme Court, the EPA continues to drag its feet,” said Milgram.

Arizona Attorney General Terry Goddard stressed that the letter reminds Johnson, “The rulemaking petition at issue in Massachusetts v. EPA was filed in 1999, now almost a decade ago. EPA’s failure to exercise its clear authority under the Clean Air Act and to act on the petition constitutes an abdication of its regulatory responsibility.”

“The time for talk is over,” Milgram declared. “New Jersey has made a firm commitment to reducing greenhouse gas emissions in order to protect our citizens and our natural resources. It is well past time for the federal government to make the same commitment by performing its statutory duty, as directed by the court.”

“Once again the federal government’s lack of action defies all logic and obfuscates justice by failing to protect public health,” said New Jersey DEP Commissioner Lisa Jackson. “In New Jersey, motor vehicles account for the largest portion of the state’s total greenhouse gas emissions.”

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Air pollution knows no borders (Photo credit unknown)

TRENTON, New Jersey, December 18, 2007 (ENS) – Because air pollution recognizes no borders, the state of New Jersey today filed suit against the owner of a coal-fired power plant across the Delaware River in Pennsylvania.

Alleging that Reliant Energy MidAtlantic Power Holdings modified its coal-fired Portland Generating Station in Pennsylvania in ways that increased emissions, New Jersey filed a lawsuit in U.S. District Court in Pennsylvania.

The lawsuit alleges that Reliant has violated the federal Clean Air Act by modifying and operating the Portland power plant without required pollution control equipment and construction permits and without the best available pollution control technology.

The Portland plant is located in Northampton County less than a mile from New Jersey’s western border. It is upwind and directly across the Delaware River from New Jersey’s Warren County, inhabited by about 105,000 people.

“The Portland Generating Station continues to operate each day in violation of federal law, and pollutants from the plant continue to carry across the Delaware River on prevailing winds, harming the air breathed by New Jersey residents,” said Attorney General Anne Milgram.

A July 2007 report by the Environmental Integrity Project entitled “Dirty Kilowatts: America’s Most Polluting Power Plants,” ranks Portland as number five in terms of having the highest sulfur dioxide emission rate per megawatt generated in the entire country.

Enough is enough,” said Lisa Jackson, commissioner of the New Jersey Department of Environmental Protection, DEP. “It seems that we cannot rely on Reliant, except to put the public in harm’s way.

The fact is, while Reliant continues to shirk its environmental responsibilities, New Jersey residents are being exposed to a host of pollutants, and we simply will not let this go on,” Jackson said.

New Jersey’s lawsuit asks the court to enjoin Reliant from operating the Portland plant unless it is in compliance with the Clean Air Act.

The complaint also asks that Reliant be required to install and operate “best available” control technologies for each pollutant.

The lawsuit also asks that Reliant be ordered to conduct an audit of its operations to determine if any additional plant modifications have occurred that are not included among those discussed in the state’s complaint.

The lawsuit seeks assessment of “an appropriate civil penalty” against Reliant and the other defendants who are previous owners of the power plant, and asks the court to award New Jersey legal fees and costs associated with bringing the lawsuit.

New Jersey tried to address the increased emissions from the Portland power plant through a variety of legal actions over the past year.

In December 2006, the state filed a notice of intent to sue the U.S. Environmental Protection Agency, EPA, for violating the Clean Air Act by not responding to a petition from the DEP that objected to a proposed operating permit for the plant.

When federal agency had not acted on the petition by February, the state filed suit contending that the agency was not doing its job, and that its failure to act on New Jersey’s objection was contributing to the state’s inability to attain its clean air goals.

On June 20, the EPA issued a final order denying the New Jersey petition request. The state responded by filing an appeal of the EPA ruling in the U.S. Third Circuit Court of Appeals. That appeal is still pending, as is a petition for reconsideration of the original denial filed with EPA.

“This facility poses an environmental danger, and our concerns have not been given due consideration by the EPA,” Attorney General Milgram said.

The state’s petition for reconsideration before the EPA asserts that increases in air emissions at the Portland Generating Station would violate national air quality standards designed to protect public health in the vicinity of the plant both in New Jersey and Pennsylvania.

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