Jump to Navigation
Jump to Content

New Jersey v. EPA

ELR Citation: 38 ELR 20046
Nos. No. 05-1097, (D.C. Cir., 02/08/2008)

The D.C. Circuit vacated two rules promulgated by the U.S. Environmental Protection Agency (EPA) regarding the emission of hazardous air pollutants from electric utility steam-generating units (EGUs). The first rule—the delisting rule—removes coal- and oil-fired EGUs from the list of sources whose emissions are regulated under the Clean Air Act (CAA) §112. The second rule—the clean air mercury rule (CAMR)—sets performance standards for new coal-fired EGUs under CAA §111 and establishes total mercury emissions limits for states and certain tribal areas, along with a voluntary cap-and-trade program for new and existing coal-fired EGUs. CAA §112(n) requires EPA to regulate EGUs under §112 when it concludes that doing so is "appropriate and necessary." In December 2000, EPA concluded that it was appropriate and necessary to regulate mercury emissions from coal- and oil-fired power plants under §112 and listed these EGUs as sources of hazardous air pollutants regulated under that section. In 2005, after reconsidering its previous determination, EPA purported to remove these EGUs from the §112 list. Thereafter it promulgated the CAMR under CAA §111. EPA's removal of these EGUs from the §112 list violates the CAA because §112(c)(9) requires EPA to make specific findings before removing a source listed under §112; EPA concedes it never made such findings. Because coal-fired EGUs are listed sources under §112, regulation of existing coal-fired EGUs' mercury emissions under §111 is prohibited, effectively invalidating the CAMR's regulatory approach. Accordingly, the court vacated both rules.