On Feb. 8, 2008, the D.C. Circuit vacated two EPA rules that would have regulated mercury emissions by coal-fired and oil-fired power plants using performance standards and a cap and trade program. In 2000, EPA listed coal-fired and oil-fired power plants as sources of hazardous air pollutants (HAPs) regulated under Section 112 of the Clean Air Act.

One of the challenged rules was EPA’s 2005 action delisting these sources, which would have removed them from specific and stringent emissions controls requirements under Section 112. The second rule, in 2006, created more flexible regulation of these sources under Section 111, including performance-based standards for new plants, a national emissions cap and state emissions allowances for new and existing plants, and a cap and trade program. New Jersey and 14 other states filed petitions challenging EPA’s rules.

The court held that EPA did not make findings explicitly required by Section 112 of the Act to de-list these sources and vacated EPA’s delisting. Because the Act requires EPA to regulate listed sources using pollution control requirements under Section 112, the court vacated EPA’s Section 111 cap and trade and performance standard regulations.

Download State of New Jersey v. EPA opinion. (PDF 51KB)

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