Judge Janice Rodgers Brown was supposed to be the consummate right winger. Progressive groups strongly opposed her appointment to the powerful U.S. Court of Appeals for the District of Columbia Circuit, and Senate Democrats stalled the nomination for two years before it finally went through.
But when Brown recently wound up on a three-judge panel charged with assessing the legality of the Bush administration’s controversial scheme for regulating mercury pollution from power plants, it seems not even she could countenance our government’s behavior. Brown joined her two fellow judges in a unanimous ruling that powerfully rebuked the Bush Environmental Protection Agency, which—despite having had essentially all of the hard work already done for it by the previous administration—had failed to get a toxic metal that damages the brains of human fetuses and young children out of the environment and food supply.
The administration’s behavior on mercury pollution has been stunning, indefensible, arbitrary, embarrassing, disgusting—and more. Let us briefly review the facts. Mercury is a naturally occurring heavy metal that gets released into the air through industrial processes, including coal burning. Once in the atmosphere, it is eventually deposited back on land or in bodies of water, where microorganisms convert it into methylmercury, a strong neurotoxin. This poisonous substance ascends the aquatic food chain and accumulates in larger, predatory fish—or in the humans who eat them. Pregnant women run the gravest risk, as eating mercury-tainted fish can lead to neurological damage to their children.
In short, mercury is nasty, nasty stuff—and it poses dangers to women who are or may become pregnant, mothers who are nursing, and young children. So you’d think it would be a no-brainer that our government would follow the law—in this case, the Clean Air Act—to get this substance taken care of—quickly.
But of course, that’s not what happened.
Late in the Clinton years, the EPA had decided that it was “appropriate and necessary” to stringently regulate power-plant emissions of mercury as hazardous air pollutants under the Clean Air Act. After all, the agency’s scientific study of mercury hazards, completed in 1998, simply compelled strong regulatory action. It identified “a plausible link between emissions of mercury from anthropogenic sources (including coal-fired electric utility steam generating units) and methylmercury in fish.” Indeed, the agency added its estimate that “roughly 60 percent of the total mercury deposited in the U.S. comes from U.S. anthropogenic air emission sources.”
But rather than implementing the inherited rules, which would have demanded that utilities use the “maximum achievable control technology” to cut mercury emissions, by 2005 the Bush administration had decided to short-circuit the Clinton administration approach and go a different route. It proposed a market-based “cap and trade” program that would have resulted in substantially weaker reductions. Cap and trade programs might work well for emissions of substances, like greenhouse gases, where we worry about the global total rather than strong regional accumulation. But much of mercury pollution is local—and if you give individual emitters the option of deciding for themselves whether to cut emissions or just accumulate extra permits to pollute, dangerous mercury “hot spots” may result.
As I wrote in several columns in 2005, the groundwork for this decision had been laid in typical conservative “war on science” fashion. First, right wing attacks on the accepted science of mercury pollution sought to downplay the risks to children and pregnant women. Meanwhile, cost-benefit analyses—which, if performed correctly, would have shown a very strong benefit to protecting children’s brains—were instead rigged to make it look like the Bush administration had done the economically sensible thing, when of course it hadn’t. (For a more thorough analysis of how the administration made a mockery of cost-benefit analysis on mercury, see here, as well as exposes from the Government Accountability Office and the EPA’s own Inspector General.)
All of this led up to the 2005 EPA decision to back away from the Clinton administration’s strong mercury regulatory approach, and substitute the weak, industry-friendly solution. Following this move, environmental groups promptly sued—as did a number of U.S. states concerned about mercury risks. And now, the D.C. Circuit’s unanimous ruling brings down the entire house of cards. Or, as the court disdainfully put it, the agency had relied upon “the logic of the Queen of Hearts.”
Indeed, the D.C. Circuit didn’t even have to demonstrate the arbitrariness of EPA’s rigged cost-benefit analyses. Instead, the court simply pointed out that EPA failed to follow the proper procedures when it took mercury off of one regulatory list—the right list, the one the Clinton administration had selected—and stuck it on another. There’s an established process that has to be followed if you decided to change how you regulate a pollutant, and the EPA didn’t even bother.
So now it’s back to the drawing board, and given standard government timelines, we’ll have to wait until the next administration for strong mercury rules to kick in.
That’s what’s so tragic: The Clinton administration had demonstrated, fully ten years ago, the dangers of mercury pollution and moved to regulate it. But the Bush administration upended the entire process and essentially wasted a decade.
Americans have been protected, at least to some extent, in those states that have outdistanced the federal government and taken strong steps on their own to address mercury risks. In general, though, the mercury story sounds a lot like the global warming story: We’ve had an administration that denied the science, rigged the economics, and did nothing. And we had it for two terms. Finally it’s coming to an end, but the costs may be incalculable.
Chris Mooney is the author of two books, The Republican War on Science and Storm World: Hurricanes, Politics, and the Battle Over Global Warming. He blogs on The Intersection with Sheril Kirshenbaum.