Nine States Sue EPA Seeking Tougher Mercury Rule

WASHINGTON, DC, March 31, 2005 (ENS) - Attorneys General from nine states have filed a lawsuit challenging a new federal Environmental Protection Agency (EPA) rule that they allege fails to protect the public from harmful mercury emissions from coal-fired power plants, which they say pose a grave threat to the health of children.

The suit, filed Wednesday by New Jersey on behalf of the coalition, challenges an EPA rule 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 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.

The lawsuit was filed 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 Harvey filed the lawsuit on behalf of all nine states. (Photo courtesy NAAG)
New Jersey Attorney General Peter 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."

Emitted into the air from coal combustion, mercury is deposited on land and water. It enters the food chain and ultimately is consumed by humans, who are harmed by its action on the nervous system. Pregnant or nursing mothers and young children are most at risk.

"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," the attorneys general said. 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.

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."

The Bush administration is proud of its new mercury regulations. Announcing the rules March 15, EPA Acting Administrator Steve Johnson said, ""This rule marks the first time the United States has regulated mercury emissions from power plants. In so doing, we become the first nation in the world to address this remaining source of mercury pollution."


EPA Acting Administrator Steve Johnson has been with the agency for 25 years. (Photo courtesy EPA)
EPA officials studied the health hazards posed by toxic emissions from power plants, including mercury, and determined in 2000, under the Clinton administration, 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, the states allege.

Under the 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.

The attorneys general say that cap-and-trade emission controls are sometimes appropriate for general air pollutants like sulfur dioxide and nitrogen oxides, but they are inappropriate for mercury because they can allow localized deposition of mercury to continue, perpetuating hot spots and hot regions that can impact the health of individual communities.

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."

power plant

The two 1,000 foot stacks at the Kingston coal-fired power plant in Tennessee are among the tallest in the world. Kingston is operated by the Tennessee Valley Authority, a federal agency. (Photo courtesy TVA)
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.

By contrast, MACT controls would reduce emissions at each facility by about 90 percent, reducing total mercury emissions from power plants to about five 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.

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 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 Eliot Spitzer is a Democrat serving in the Republican administration of Governor George Pataki. (Photo courtesy NAAG)
New York Attorney General Eliot 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."

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.


New Hampshire Attorney General Kelly Ayotte has litigated complex civil, commercial and criminal defense cases. (Photo courtesy NAAG)
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.

At the EPA, Johnson says mercury contaminated fish is not that great of a risk because close to 80 percent of the fish Americans buy comes from overseas, "from other countries and from waters beyond our reach and control."

The United States contributes just a small percentage of human-caused mercury emissions worldwide - roughly three percent, with U.S. utilities responsible for about one percent of that, he said

"Airborne mercury knows no boundaries; it is a global problem," Johnson said. "Until global mercury emissions can be reduced - and more importantly, until mercury concentrations in fish caught and sold globally are reduced - it is very important for women of child-bearing age to pay attention to the advisory issued by EPA and FDA, avoiding certain types of fish and limiting their consumption of other types of fish."

For more information about the EPA rule, go to: For more information about mercury in fish, go to: For more information about FDA's fish advisory go to: