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New Jersey et al.v EPA.

Country/Territory
United States of America
Type of court
National - higher court
Date
Feb 8, 2008
Source
UNEP, InforMEA
Court name
United States Court of Appeals, District of Columbia
Judge
Rogers, Tatel and Brown.
Reference number
No. 05-1097
Language
English
Subject
Waste & hazardous substances, Energy, Legal questions
Keyword
Energy conservation/energy production Liability/compensation Hazardous substances
Abstract
The suit was filed by the state of New Jersey, along with thirteen other states, environmental organizations, and industrial groups against two Environmental Protection Agency (“EPA”) actions, the first to delist mercury emitting coal and oil-fired electric utility steam generation units (“EGUs”) from section 112 of the Clean Air Act and the second to limit mercury emissions, under the much less restrictive, CCA section 111 with the new Clean Air Mercury Rule. In 2004 EPA proposed to limit mercury emissions from new and existing coal and oil EGUs, and develop a voluntary cap-and-trade program to reduce mercury emissions. EPA contended that section 112(n)(1)(A) does not restrict the agency from reviewing previous decisions of “necessary and appropri ate” listings of EGUs. If EPA finds that a listing of source EGUs had not in fact been “necessary and appropriate,” it contended that it could delist those sources without meeting the delisting requirements of section 112(c)(9). Secondly, EPA argued that the court should defer to the agency’s interpretation of section 112, stating that it is ambiguous and calls into question whether EGUs should be regulated at all. Finally, EPA pointed out that it has previously delisted HAP sources without satisfying the requirements of section 112(c). The Court found that the delisting restriction in section 112(c)(9) represented an expressed limit on EPA’s discretion to delist HAP sources. Furthermore, the Court found that EPA’s position would nullify section 112(c) and allow the agency to delist any source without regard for the statutory delisting process. The court found no ambiguity in section 112 and held that the EPA’s argument “deploys the logic of the Queen of Hearts, substituting EPA’s desires for the plain text . . .” Finally, the court found EPA’s third argument unconvincing, pointing out that previous examples of statutory violations are not an excuse for current violations. Finding all three of EPAs arguments without merit, the court vacated the delisting of coal- and oil-fired EGUs. Under EPAs own interpretations, the mercury regulation under CAMR created within CCA section 111 cannot be used to regulate sources listed in section 112. With this in consideration, the Court also vacated CAMR and remanded it to EPA for reconsideration.
Full text
COU-159440.pdf