The Supreme Court has recently heard oral arguments in Michigan vs. EPA challenging regulations slashing mercury emissions from fossil-fuel power plants. However, the central issue was not, as commonly represented, preventing harm from mercury. The central issue is the use of mercury as a bait-and-switch excuse for more stringent restrictions on fine particulate emissions. The EPA utilized what Justice Scalia called “a silly way to read” the law to do what Chief Justice Roberts described as an “end run” around its statutory limits, and the case well illustrates how government agencies are able to use open-ended legislation to get whatever they want.
The 1990 Clean Air Act amendments instructed the EPA to study whether mercury exposure posed a health hazard that would make restricting it “appropriate and necessary.” Justification therefore first required demonstrating harm from mercury.
That proved impossible to do honestly. CDC surveys showed blood mercury levels for American women and children falling and already below the levels found safe by the EPA, FDA, and WHO. The EPA even rejected a high mercury exposure study simply because it found “no observable health effects.” So they cheated.
The EPA instead constructed a model of hypothetical women that “consume extreme quantities (99th percentile) of the most contaminated fish from the most contaminated bodies of water,” according to one amicus brief. It then added on a 50 percent “cooking adjustment factor.” It then estimated “the potential effect of this exposure on their hypothetical children’s neurological development in utero.” Given that power plants add a very small fraction to mercury deposition, that effect was minuscule. Even after more eye-glazing assumptions to inflate the damage, the estimated economic gain from reducing exposure to mercury was $6 million or less annually.
Ignoring the Costs of Regulation
However, the EPA then estimated that its “solution” to mercury emissions of fossil fuel power plants would cost $9.6 billion annually. That 1,600 to 1 disproportion clearly puts the lie to any assertion of those mercury regulations as “appropriate and necessary.” So the EPA sidestepped that minor detail by asserting they were not required to consider costs in coming to a health hazard determination.
But there is no way to know whether a regulation is appropriate (or sensible, suitable, or proper) in the absence of a consideration of the costs. Both the word itself and the reality that every choice imposes a cost means that costs are undeniably relevant. One might also mention that “arbitrary and capricious agency action” on the part of the EPA and other government agencies impose separate costs of their own on society.
The Legal Gift That Keeps on Giving
Having supposedly justified regulating mercury by creatively “finding” benefits and ignoring the costs, the EPA turned to what has become their “go-to” mechanism for finding that their policies’ benefits outweigh their costs — fine particulate pollution. Virtually every dollar of benefits they estimated from mercury reduction ($36 to 89 billion annually, though using very misleading methodology) actually comes from reduced fine particle emissions, not mercury reductions.
However, the EPA has regulated fine particulate pollution for thirty-five years under Sections 108-110 of the Clean Air Act, as part of the National Ambient Air Quality Standards (NAAQS). And under Section 109, the EPA already sets national ambient air quality standards that, “allowing an adequate margin of safety, are required to protect the public health.” If the federal fine particulate standard they set in 2013 is “adequate to protect public health,” how can the benefits from further reductions in fine particulate emissions be tens of billions of dollars yearly? They can’t.
Legal Entrepreneurship by Government Agencies
So why does the EPA want to stack the mercury restriction deck with a fine particulate wild card? Because under NAAQS, they can set a standard for fine particulates that states must meet, but states determine how to meet them. The EPA cannot single out coal-fired power plants as their intended “victims.” Further, they cannot dictate the form or extent of their victimization. But if they can employ minuscule or imaginary mercury damage as an excuse, and dress up tighter fine particulate restrictions on power plants as if they addressed mercury damage, they can ramp up their limited power to determine fine particulate standards into almost unlimited direct command and control over whoever they choose to target, even though the Clean Air Act denies them such power.
In other words, the law as passed by Congress provides so many options and so many tools to the EPA, that it’s only a matter of mixing and matching different pieces of law to target whomever they want to get whatever they want. The mercury “backdoor” the EPA is claiming, continuing an ongoing pattern, shows their intent to increasingly get whatever they want regardless of what the law may say.
