Nine States File Suit Challenging Epa Mercury Rule

Attorneys General from nine states filed a lawsuit today challenging a new federal Environmental Protection Agency (EPA) rule that fails to protect the public adequately from harmful mercury emissions from coal-fired power plants, which pose a grave threat to the health of children.

The suit, filed by New Jersey on behalf of the coalition, challenges an EPA rule published today that removes power plants from the list of pollution sources subject to stringent pollution controls under the federal Clean Air Act. EPA announced the rule on March 15, along with a second rule establishing a cap-and-trade system for regulating mercury emissions. The trading scheme will allow some plants to actually increase mercury emissions, creating hot spots of local and regional mercury deposition. Members of the coalition also plan to file suit challenging the cap-and-trade rule once it is published in the Federal Register.

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.EPA’s rule has devastating implications for young children, who can suffer permanent brain and nervous system damage as a result of exposure to even low levels of mercury, which frequently occurs in utero. Mercury exposure can result in attention and language deficits, impaired memory, and impaired visual and motor functions.

Coal-fired power plants are the largest source of uncontrolled mercury emissions, generating 48 tons of mercury emissions per year nationwide.

The lawsuit was filed today in the U.S. Court of Appeals for the District of Columbia Circuit by the Attorneys General of New Jersey, California, Connecticut, Maine, Massachusetts, New Hampshire, New Mexico, New York and Vermont.

New Jersey Attorney General Peter C. Harvey said: "We are dedicating our legal resources to fight EPA’s new rule, which fails to protect our children from toxic mercury emissions. It is an established medical fact that mercury causes neurological damage in young children, impairing their ability to learn and even to play. EPA’s emissions trading plan will allow some power plants to actually increase mercury emissions, creating hot spots of mercury deposition and threatening communities."

California Attorney General Bill Lockyer said: "These rules do much more than violate federal law. They ignore science, suppress evidence and make the health of women and children a lower priority than the financial health of industry. Our states and our people cannot afford to let them stand."

Connecticut Attorney General Richard Blumenthal said: "This rule defies common sense and the law, and deserves a quick judicial demise. We are suing immediately to stop it because mercury is a proven killer and crippler, and the new rule gives power plants a free pass to spew this deadly neurotoxin into our air and water. The Bush administration has once again demonstrated that it puts corporate profits over human health and the environment. My office will work with other states to fight a federal flight of policy that threatens to sicken our citizens and despoil our environment."

Maine Attorney General G. Steven Rowe said: "This rule is carefully crafted to allow industry to avoid installing pollution control technology that is available today and that is essential to protect public health and the environment from the dangers of mercury. EPA's approach to this rulemaking raises very serious concerns about the willingness of the agency to do its job."

Massachusetts Attorney General Tom Reilly said: "This new emissions rule undercuts the Clean Air Act and allows power plants, which are the largest producers of mercury, to put profits before the public health. My Office has repeatedly asked the EPA for key documents about potentially more effective alternatives to this new trading program without success – I will not sit back and allow the EPA to continue to institute new rules that jeopardize the health of the people of Massachusetts and beyond."

New Hampshire Attorney General Kelly A. Ayotte said: "New Hampshire cannot wait for meaningful nationwide controls on mercury emissions from coal-fired power plants. Mercury is highly toxic and threatens our health and environment. EPA has ignored sound science, the Clean Air Act and New Hampshire's recommendations on setting strict federal controls for mercury. We have no choice but to seek reversal of this misguided rule."

New Mexico Attorney General Patricia A. Madrid said: "The EPA’s new rule favors certain special interests over the health and welfare of our children and future generations. It is shameful, but we will not let stand unchallenged an EPA rules that fails to control mercury emissions from coal-fired plants across the country."

New York Attorney General Spitzer said: "Today’s action by the EPA not only fails to protect public health and the environment from mercury pollution; it is actually a step backward. New Yorkers deserve better, and I am happy to work with this coalition of states that are committed to achieving long overdue and common sense improvements in air quality."

Vermont Attorney General William Sorrell said: "For years the EPA has been saying that mercury pollution is a very serious hazard to the environmental health of this country. All of a sudden it seems to be saying ‘No big deal.’ We just have to fight this huge policy change."

EPA studied the health hazards posed by toxic emissions from power plants, including mercury, and determined in 2000 that power plants must be regulated under Section 112 of the Clean Air Act, which requires that "maximum achievable control technology" (MACT) be used to control those emissions. The rule that EPA published today improperly exempts power plants from regulation under Section 112, reversing EPA’s prior determination that the strictest controls are necessary to protect public health.

Under EPA’s cap-and-trade rule, power plants can elect, rather than reducing their own mercury emissions, to purchase emissions credits from other plants that reduce emissions below targeted levels. Cap-and-trade emission controls, while sometimes appropriate for general air pollutants like sulfur dioxide and nitrogen oxides, are inappropriate for mercury because they can allow localized deposition of mercury to continue unabated, perpetuating hot spots and hot regions that can significantly impact the health of individual communities.

A strict MACT standard, as required by the Clean Air Act, would reduce mercury emissions to levels approximately three times lower than the cap established in the new EPA rule. EPA’s trading rule will reduce mercury emissions from power plants from the current level of about 48 tons per year to 15 tons per year. MACT controls, on the other hand, would reduce emissions at each facility by about 90 percent, reducing total mercury emissions from power plants to about 5 tons per year. Moreover, the new EPA rule extends the deadline for compliance from 2008 to 2018, with full reductions not expected until 2026 under the new rule.

Exposure to the most toxic form of mercury comes primarily from eating contaminated fish and shellfish. However, fish advisories, which have been adopted by EPA, are not an adequate substitute for appropriate regulation of mercury emissions under the Clean Air Act.

Scientists estimate up to 600,000 children may be born annually in the United States with neurological problems leading to poor school performance because of mercury exposure while in utero. Fish from waters in 45 of our 50 states have been declared unsafe to eat as a result of poisoning from mercury.

At least 40 percent of lakes in New Hampshire and Vermont contain fish mercury levels in excess of EPA's own standard. In New Jersey, there are mercury consumption advisories for at least one species of fish in almost every body of water in the state.