Michigan AG Leads Amicus Brief Against EPA Mercury Controls

Here is the brief.

The case is American Nurses Assn. v. Jackson.

It is a sad day for everyone living in the Great Lakes watershed that so many states can get behind a lawsuit that will guarantee higher mercury levels in the water and not suffer political backlash. We in Michigan are deeply shamed by the actions of our Attorney General.

Obama Administration Moves to Dismiss EPA Mercury Regulation Cert Petition

Several Michigan tribes had an interest in this case, and signed on to an amicus brief before the D.C. Circuit (here). There are still industry petitions to deal with, but with the EPA dropping one petition (the EPA’s petition is here), it’s a better litigation climate.

From SCOTUSblog:

Attention has focused on the Solicitor General’s approach to the al-Marri litigation as the first instance in which the Obama Administration’s views would affect the government’s position in the Supreme Court.

But the first change came in an environmental case today.  The Solicitor General, in act likely to be hailed by environmental groups, moved to dismiss the EPA’s position in No. 08-512, EPA v. State of New Jersey.  The petitionD.C. Circuit ruling regarding the EPA’s approach to regulating mercury emissions from power plants. 17 States, the City of Baltimore, 11 tribes, and several public health and environmental organizations opposed the Bush Administration’s position.

The original petition had protested that the EPA had discretion to delist source categories for regulation without making the specific health and environmental determinations required by the Act. But today’s submission indicated that the EPA had determined to follow the regulatory scheme favored by the states and mandated by the D.C. Circuit, which would hold power plants to stricter and less flexible emissions standards and hold the agency to a higher standard for changing source categories.  The Solicitor General’s motion to dismiss stated that the EPA has decided “to develop appropriate standards to regulate power-plant emissions under Section 7412″ and therefore does not seek review of the lower ruling.

***The parallel case that seeks review of the same judgment, Utility Air Regulatory Group v. New Jersey, is still pending, but seems less likely to be granted certiorari because of the government’s compliance with the D.C. Circuit’s ruling. UARG has yet to file a reply brief and the petition has been distributed for the Justice’s conference on February 20. The original filings can be found below.

Docket: 08-352, 08-512
Title: Utility Air Regulatory Group v. New Jersey, et al.; E.P.A. v. State of New Jersey
Issue: Whether the Environmental Protection Agency may eliminate power plants from a list of source categories regulated under the Clean Air Act.

DC Circuit Vacates EPA Mercury Emissions — New Jersey v. EPA

Here is the opinion.

Here is a link to our previous post that included several briefs, including the tribal brief.

Congrats to the petitioners!

Challenge to EPA’s Mercury Rule — New Jersey v. EPA (CADC)

The D.C. Circuit will hear oral argument in the challenge to EPA’s regulations applying to coal-fired plants, New Jersey v. EPA, on December 6, 2007. The panel includes Judges Rogers, Tatel, and Brown. The order on oral argument is here: D.C Circuit Order

Selected briefs are included below:

State Governments Opening Brief

Environmental Groups Opening Brief

Treaty Tribes Opening Brief

EPA Brief

Brief of States Supporting EPA

State Government Reply Brief

Environmental Groups Reply Brief

Treaty Tribes Reply Brief

Lake Superior Tribes Studying Chemicals in Lake

From 91.3 FM:

News From 91.3 KUWS
Tribes studying chemicals in fish, and what it might do to people

Story posted Monday at 5:13 p.m.



Chequamegon Bay tribes are investigating the effects of fish contaminants in the greatest of the Great Lakes. Danielle Kaeding reports from Superior.

Lake Superior is facing threats on all sides: from development on it shores to invasive species to the air we breathe. Matt Hudson of the Great Lakes Indian Fish and Wildlife Commission says most chemicals in Lake Superior come from the atmosphere. “There’s residual sources of some of these chemicals–like toxifine was used in the southern United States on cotton crops. When you get the right weather pattern, some of that toxifine that’s still in that soil down there can get up into the atmosphere and carried in conveyor belt fashion up to the Great Lakes Region and dumped in rainstorms over the Great Lakes.” Hudson says the Bad River, Fond du Lac and Red Cliff bands sought out GLIFWC’s help. They hope to sort out which chemicals are in fish and what that means when people eat the fish. “Tribal members came to GLIFWC and said, ‘We’re concerned about mercury in fish.’ This was focused more on walleye on inland lakes in Minnesota, Wisconsin, Michigan. So, GLIFWC started a contaminant monitoring program. We’ve been measuring mercury in walleye in inland lakes since 1989. We recently started testing Lake Superior fish as well.” Hudson says larger fish tend to contain more contaminants like mercury. “We’re trying to get as much information as we can about fish species that tribal members are eating and concerned about so we can give them the tools to make choices. They’re always going to eat fish. It’s a part of their culture, so we try to give them the species of fish and sizes of fish and information that will help them reduce their risk and maximize benefits.” Hudson says eating fish like herring and whitefish are low in contaminants and can improve heart health over time.