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For Immediate Release:  
For Further Information Contact:
May 18, 2005

  • New Jersey Attorney General Peter C. Harvey
  • California Attorney General Bill Lockyer
  • Connecticut Attorney General Richard Blumenthal
  • Maine Attorney General G. Steven Rowe
  • Massachusetts Attorney General Tom Reilly
  • New Mexico Attorney General Patricia A. Madrid
  • New York Attorney General Eliot Spitzer
  • Pennsylvania Environmental Protection Secretary Kathleen A. McGinty
  • Vermont Attorney General William H. Sorrell
  • Wisconsin Attorney General Peg Lautenschlager

NJ - Peter Aseltine 609-292-4791
CA - Teresa Schilling 916-324-5500
CT- Christopher Hoffman 860-808-5324
MN - Jerry Reid 207-626-8800
MA - Sarah Nathan 617-727-2543
NM - Sam Thompson 505-222-9174
NY - Marc Violette 518-473-5525
PA - Kurt Knaus 717-787-1323
VT - Erick Titrud 802-828-5518
WI - Scot Ross 608-266-1220


Multi-State Release

Eleven States Sue EPA to Block Second Mercury Rule
Cap and Trade Rule Will Perpetuate “Hot Spots” of Mercury Deposition From Power Plants

Attorneys General and an Environmental Protection Secretary representing 11 states are filing a lawsuit today challenging a new federal Environmental Protection Agency (EPA) rule that establishes a cap-and-trade system for regulating harmful mercury emissions from power plants. The rule will delay meaningful emission reductions for many years and perpetuate hot spots of local mercury deposition, posing a grave threat to the health of children.

The rule was published today in the Federal Register. The states previously filed suit against a separate EPA rule published March 29 that removed power plants from the list of pollution sources subject to stringent pollution controls under the federal Clean Air Act. EPA announced both the de-listing rule and the cap-and-trade rule on March 15. The trading scheme established by the rules will allow power plants to elect, rather than reducing their own mercury emissions, to purchase emissions credits from plants that reduce emissions below targeted levels.

The New Jersey Attorney General is filing the suit today in the U.S. Court of Appeals for the District of Columbia Circuit on behalf of the coalition, which also includes the Pennsylvania Environmental Protection Secretary and the Attorneys General of California, Connecticut, Maine, Massachusetts, New Hampshire, New Mexico, New York, Vermont and Wisconsin.

Cap-and-trade emission trading programs, while sometimes appropriate for general air pollutants such as sulfur dioxide and nitrogen oxides, are inappropriate for mercury because they can allow localized deposition of mercury to continue unabated near plants that choose not to reduce emissions, perpetuating hot spots and hot regions that can significantly impact the health of individual communities.

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, which frequently occurs in utero. Mercury exposure can cause 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.

New Jersey Attorney General Peter C. Harvey said: “These rules are deeply flawed and contrary both to science and the law. Mercury is a potent neurotoxin that damages the developing brains of fetuses and young children. EPA has failed to meet its obligation under the Clean Air Act to adopt rules that will protect our children from toxic power plant emissions.”

California Attorney General Bill Lockyer said: “All of our communities, all of our women and children, deserve the strongest possible protections against exposure to this significant public health hazard. The government has a duty to provide that protection. With these rules, the Bush Administration has failed to honor that duty and, in the process, not been forthright with the American people.”

Connecticut Attorney General Richard Blumenthal said: “These regulations present an unacceptable risk to the health of children and pregnant women. A cap-and-trade system will concentrate mercury contamination in hot zones, unnecessarily exposing millions to this deadly toxin. The Bush administration allowed this rule by illogically reversing an earlier finding that mercury should be subject to stringent rules governing hazardous substances. In fact, there is no question that mercury is a proven killer, and this rule aids and abets its deadly effects.”

Massachusetts Attorney General Tom Reilly said: “These new rules leave young children and pregnant women at risk of exposure to mercury. Instead of addressing the issue of mercury pollution head on, the EPA has chosen to suppress key documents about potentially more effective alternatives and release rules that undercut the Clean Air Act. The EPA must do more to protect the people of Massachusetts and the United States from toxic pollution.”

New Mexico Attorney General Patricia A. Madrid said: “Once again, the Bush administration fails to demonstrate concern for the health and safety of our citizens. The EPA has adopted a mercury emissions rule that effectively exempts power plants from doing what they can to limit the emissions of chemicals that are known to cause specific dangerous birth and developmental defects. The EPA's action allows these dangers to continue unabated in some communities, and that is why this rule must be challenged and overturned.”

New York Attorney General Eliot Spitzer said: “Mercury is a toxin that harms people and pollutes the environment. This EPA rule does not do nearly enough to reduce mercury pollution from power plants. The people and the environment deserve much better protection from this poison.”

Pennsylvania Environmental Protection Secretary Kathleen A. McGinty said: “The administration's mercury proposal is insufficiently protective of public health. EPA was right in 2000 in recognizing mercury as a hazardous air pollutant that needs to be regulated strictly. They are wrong now in changing course. President Bush speaks of a ‘culture of life.’ The Administration's actions here, however, do not match these words and the rule falls far short of what is required to protect vulnerable young lives.”

Vermont Attorney General William Sorrell said: “EPA told us in 2000 that mercury was a hazardous air pollutant that had to be strictly regulated. Now they are effectively telling us it's not that bad. We simply cannot let them get away with sweeping this problem under the rug.”

Wisconsin Attorney General Peg Lautenschlager said: “Years ago, EPA listed mercury as a hazardous air pollutant because of its serious health and environmental effects. Efforts underway now by EPA to exempt mercury from the achievable controls required by law are wrong-headed and dangerous.”

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 de-listing rule that EPA published on March 29 exempts power plants from regulation under Section 112, reversing EPA’s prior determination that the strictest controls are necessary to protect public health.

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 cap-and-trade rule EPA published today. EPA’s cap-and-trade rule will reduce mercury emissions from power plants from the current level of 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 at least 2026.

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 the womb. 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 federal standards. In New Jersey, there are mercury consumption advisories for at least one species of fish in almost every body of water in the state.

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