Attorney General Lockyer Announces California and 15 Other States File Court Petition Challenging U.S. EPA's Weak Mercury Emissions Rules

‘Cap-and-Trade’ Plan Violates Clean Air Act, Leaves Children Exposed to Hot Spots

Monday, June 19, 2006
Contact: (916) 210-6000,

(SACRAMENTO) – Attorney General Bill Lockyer today announced California and 15 other states filed a new petition in federal court challenging final rules published by the U.S. Environmental Protection Agency (EPA) which establish a “cap-and-trade” system for regulating harmful mercury emissions from power plants.

“These rules flout consensus science and clear federal law,” said Lockyer. “But worst of all, they fail to protect women and children from a toxic substance that can cause birth defects and learning disabilities. The industry may win with these weak standards. But our public health, communities and families will be the losers.”

EPA recently announced it would move forward with its cap-and-trade program for mercury emissions despite petitions from the states and environmental groups. The petitioners outlined how the program will delay meaningful emissions reductions for many years and pose a serious threat to the health of children by perpetuating hot spots of local mercury exposure.

The coalition of states filed suit last year in the U.S. Court of Appeals for the D.C. Circuit, challenging the cap-and-trade rule and a separate regulation that removed power plants from the list of pollution sources subject to stringent pollution controls under the federal Clean Air Act. The lawsuit, which alleges both rules violate the Clean Air Act, was put on hold by the court in October 2005 when the EPA agreed to formally reconsider the rules.

After more than six months, EPA on June 9 chose to adopt final rules that failed to address any of the concerns raised by the states. EPA actually made the rules worse than those originally adopted, watering down already weak mercury emissions standards for every major type of coal plant except for bituminous coal-burning facilities. The new petition filed by the states today will allow the 2005 suit to move forward.

Coal-fired power plants are the largest source of uncontrolled mercury emissions, generating 48 tons of emissions per year nationwide. The scheme established by EPA’s cap-and-trade rule will allow power plants to purchase emissions reduction credits from other plants that reduce emissions below targeted levels, rather than install stringent controls to reduce emissions at their own plants.

The cap-and-trade approach will allow localized, high-level mercury exposure 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.

Mercury enters the aquatic food chain and ultimately is consumed by humans ingesting certain types of fish. Children can suffer permanent brain and nervous system damage as a result of exposure to even low levels of mercury, which frequently occurs before birth. Mercury exposure can result in attention and language deficits, impaired memory and visual and motor functions, and reduced IQ. Additionally, mercury recently has been linked to increased heart attacks in adult males. 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.

EPA finalized its cap-and-trade rule despite recent reports that further call into question the conclusions underlying the rule. EPA-funded research conducted in Steubenville, Ohio found that wet mercury deposition rates from local coal-fired industrial sources are many times higher than EPA projections, underscoring the potential for uncontrolled local sources to perpetuate mercury hot spots. The EPA Inspector General released a report on May 15 which found that “several uncertainties associated with key variables in (EPA’s) analysis could affect the accuracy of the Agency’s conclusion that the Clean Air Mercury Rule will not result in ‘utility-attributable’ hot spots.”

A strict standard involving “maximum achievable control technology” (MACT), as required by the Clean Air Act, would reduce mercury emissions to levels approximately three times lower than the limit established in the cap-and-trade rule adopted by EPA. Further, the statutorily-required MACT approach would reduce emissions far more quickly.

EPA’s cap-and-trade rule will yield little immediate reductions in mercury emissions from power plants from the current level of 48 tons per year, and will delay even modest reductions by more than a decade. In contrast, compliance with the Clean Air Act and required MACT controls would reduce emissions at every coal-fired power plant by about 90 percent, to about 5 tons per year, with a compliance deadline of 2008.

In contrast to the EPA rule, more than 20 states have adopted, or are moving to adopt, significantly more stringent rules to reduce mercury emissions.

The coalition challenging the EPA rule includes California, Connecticut, Delaware, Illinois, Maine, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Vermont and Wisconsin.

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PDF icon Petition for review77.31 KB
PDF icon Petition for review77.31 KB