Federal Judiciary

Move to keep mercury pollution case alive

By Akin Gump Supreme Court Practice Group

A group of electric utility companies and industry trade groups has urged the Supreme Court to go ahead and review a major mercury air pollution case even though the federal government no longer favors that review.  In a letter filed with the Court Feb. 12, the Utility Air Regulatory Group contended that its pending case would not be affected even if the separate governmen case is dismissed.

The two petitions — Utility Air Regulatory Group v. New Jersey, et al., (08-352), and Environmental Protection Agency v. New Jersey, et al. (08-512) — were filed last fall, urging the Justices to overturn a D.C. Circuit Court decision on EPA’s duties in reducing mercury emissions from power plants.  Both contended that the Circuit Court was wrong in limiting EPA’s authority to remove power plants from a list of sources that must have their mercury emissions reduced to the maximum extent.  EPA had not taken the steps that the Circuit Court said it must before de-listing power plants from that category.

On Feb. 6, the new Obama Administration asked the Court to dismiss EPA’s petition, indicating that it would make the findings that the Circuit Court said it must.  (A post discussing the motion to dismiss can be read here; the post includes a link to that motion.)

The alliance of power companies and trade groups had already prepared its reply brief in its case before the EPA made its move for dismissal. It subsequently filed its views in a letter to the Clerk, argung that dismisal of 08-512 “would not in any way moot the petition filed by UARG.”

It noted that the EPA had previously argued that the Circuit Court ruling contained “fundamental legal errors” that would raise “substantial practical harms.”  The change of mind by the new Administration, it added, would deprive the EPA of “an important regulatory tool” under the Clean Air Act.

The government, in urging dismissal of its case, mentioned the utility group’s separate case, but made no recommendation to the Court on what should be done with that petition.

Full post as published by SCOTUSBLOG on February 17, 2009 (boomark / email).