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Supreme Court to New Jersey: Drop dead

ENVIRONMENT NEW JERSEY – In a 5-4 decision, the U.S. Supreme Court struck down the U.S. Environmental Protection Agency’s first-ever national standards for mercury pollution from power plants. The standards would have applied to roughly 600 plants, cutting mercury pollution up to 90 percent and preventing an estimated 11,000 deaths each year.

“The Supreme Court decided with polluting fossil fuel plants today. This is a huge setback for our kids’ health,” said Doug O’Malley, director of Environment New Jersey. “New Jersey has lead the way in reducing mercury pollution, but our air and waters aren’t safe because of Midwest fossil fuel plant pollution blowing into New Jersey. This is a kick in the stomach for public health protections.”


Power plants are the number one source of mercury, a potent neurotoxin linked to developmental disorders in newborns. More than 4 million women of childbearing age have enough mercury in their bodies to put their children at risk. The standards would have also limited other deadly toxins including arsenic and cadmium, as well as acid gases and organics.


The case, Michigan v. EPA, focuses on the EPA’s first limits on mercury, arsenic and acid gases emitted by coal-fired power plants, known as mercury and air toxics (MATS). The EPA says it rule, which has already taken effect, would cost $9.6 billion, produce between $37 billion and $90 billion in benefits and prevent up to 11,000 premature deaths and 130,000 asthma cases annually.  In New Jersey alone,the EPA estimates the health benefits in New Jersey would equal up to $2.6 billion a year.


After receiving more than 800,000 public comments supporting strong limits on mercury pollution, EPA finalized its standard in February 2012, and it took effect in April of this year. But in November, the Supreme Court agreed to hear a challenge of the rule by some states and affected polluters, such as the National Mining Association and the Utility Air Regulatory Group.

Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Anthony Kennedy joined Justice Antonin Scalia in overturning the rule. Both Alito and Scalia are Trenton natives. Justices Elena Kagan, Sonia Sotomayor, Stephen Breyer and Ruth Bader Ginsburg sided with the EPA.

Justice Kagan argued in her minority opinion that EPA was well within the bounds of historial rulemaking in her minority opinion: “The majority’s decision that EPA cannot take the same approach here — its micromanagement of EPA’s rulemaking, based on little more than the word ‘appropriate’ — runs counter to Congress’s allocation of authority between the Agency and the courts,” she said.

“The Supreme Court’s decision is fundamentally flawed and is a fumbled overreach on the powers of the EPA to enforce the Clean Air Act. This decision hurts New Jersey, our air quality and the safety of our waters,” said O’Malley.


New Jersey has led the nation in reducing mercury pollution from power plants, first triggered by a series of clean air lawsuits against state coal plants in the 1990s. Since 2007, New Jersey has enforced a mercury reduction rule from power plants that become a model for EPA’s rule. Mercury emissions have been reduced by more than 90% since the 1990s, and the involvement of the state’s largest utility, PSEG, has been an example of the feasibility of rule and the availability of the technology.


New Jersey sued EPA during the Bush Administration by exempt coal power plants from mercury restrictions, but the Christie Administration did not join other states in filing briefs supporting the rule.


Environment New Jersey’s national organization, Environment America, was among a number of environmental and health organizations who supported the defense of these health safeguards in court.

“The Christie Administration was noticeably absent in defending a clean air victory story for New Jersey. This is a sad day for New Jersey,” said O’Malley.