December 21, 2011

The Utility MACT: Finally Telling Coal Plants They Can't Spew All the Mercury They Want

It was October 1990, George H.W. Bush was President, and the vote wasn’t close in either chamber: Congress overwhelmingly passed the 1990 Clean Air Act amendments, including provisions requiring EPA to reduce mercury emissions from major sources such as power plants.

Today the EPA at long last released its rule regulating mercury emissions from coal-fired utilities.  The fact that the largest remaining sources of mercury will finally be required to reduce their emissions is an important and historic development. And EPA’s steadfastness in the face of kicking and screaming by the dirtiest of the utilities down to the bitter end is a cause for celebration.  But thousands were needlessly poisoned during years of delay, and today is less an occasion for a victory lap than one for sober reflection.

How is it that one industry has wrangled nearly a quarter-century delay from the time Congress mandated “serious” reductions in toxic pollutants to the time it will actually be required to spew less mercury into our air? 

How have coal-fired utilities secured this reprieve despite the proliferation of advisories warning children and women of childbearing age to curtail – or cease entirely – their consumption of certain species of fish due to methylmercury contamination?  These advisories now blanket our nation’s inland and coastal waters, nevermind the importance of fish for neurological development, cardiovascular health, and its other nutritional benefits.

How have coal-fired utilities been granted this “pass” when it has become clear that mercury contamination is an environmental injustice – that among the people most exposed are low-income fishers, Asian-Americans and Pacific Islanders, and members of the various fishing tribes.  In a recent national study of women of childbearing age, whereas 15.3% of self-identified “White” women of childbearing age had blood mercury levels above the level deemed safe by EPA, fully 31.5%, of women who identified themselves as “other” – a category composed primarily of Native Americans, Pacific Islanders, those of “Asian origin,” and those of “mixed race” – had unsafe mercury levels.  Moreover, many American Indian tribes in the Great Lakes and elsewhere have rights to catch and consume fish, including rights protected by treaties with the United States.  Those rights have been undermined by mercury contamination. 

How have coal-fired utilities been able to continue to buy time, while the scientific evidence of methylmercury’s harms to human and ecological health has mounted, with studies demonstrating that adverse impacts occur at lower mercury concentrations and impair greater numbers of species than previously recognized?

How have coal-fired utilities managed to get an audience for claims that they have been “caught unaware” by the possibility of regulation, when they have worked day in and day out to construct  hurdles at every step in the protracted regulatory process?

The late environmental attorney Luke Cole once observed that those harmed by toxic contaminants such as methylmercury don’t see pollution as the failure of government and industry but rather as the success of government and industry – “success at industry’s primary objective:  maximizing profits by externalizing environmental costs.” 

Perhaps the coal-fired utilities are taking their victory lap.

Catherine O'Neill, CPR Member Scholar; Professor of Law, Seattle University School of Law. Bio.

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