EPA's Mercury and Air Toxics Standards: The Right Tool at the Right Time

Yesterday I participated in a debate sponsored by the Environmental Law Institute, arguing in favor of the proposition that EPA’s mercury and air toxics standards [pdf] for oil- and coal-burning power plants are the right tool at the right time.

My debate partner was Michael Bradley, Executive Director of the The Clean Energy Group. Our debate opponents were industry attorneys Scott Segal and Jeff Holmstead, partners with Bracewell & Giuliani.

Mr. Segal also serves as director for a coalition of utility companies, the Electric Reliability Coordinating Council, which has been virulently opposed to EPA's proposed mercury and air toxics standards. You will not find the member companies of ERCC identified online or anywhere else because the body tellingly refuses to reveal its full membership. I asked Mr. Segal and Mr. Holmstead to disclose the identities of all those member companies yesterday, but they declined to do so after naming just three companies (Southern Company, Progress Energy and Duke Energy) whose membership already was known.

For his part, Mr. Holmstead was the political appointee heading EPA’s air office during the Bush administration from 2000 to 2008. In that position, he was responsible for the actions that refused to control mercury and all air toxics from power plants as required by the Clean Air Act. This resulted in a scathing 2008 court decision that overturned the Bush administration actions and went out of its way to level rebukes that compared their underlying legal interpretations to the logic of the Queen of Hearts in Alice in Wonderland.

I will post a video of the debate here once it is available. In the meantime, here is my opening statement from the debate (with links to referenced materials).

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EPA’s mercury and air toxics standards for power plants are required by the law and long overdue. The safeguards are justified by overwhelming public health benefits. Accordingly, these protections are the right tool at the right time.

At the outset it’s worth noting the lack of precision from even styling this as a “debate.” So-called Maximum Achievable Control Technology standards for power plants are plainly required by the Clean Air Act, which establishes both the legal instructions and the timing for those standards.

Mr. Segal and Mr. Holmstead are both accomplished lawyers, and I know that they are not cavalier about what the law requires and the value in respecting the Rule of Law.

There can be no serious argument or debate about the fact that these standards are required by the law, following a court decision [pdf] that vacated and remanded the blatantly unlawful rules by the prior administration. The court ruling mocked the 2005 rules’ foundational legal reasoning as akin to the capricious, fanciful logic straight out of Lewis Carroll’s Alice in Wonderland.

This ruling left EPA with the clear obligation to issue Maximum Achievable Control Technology standards for power plants. EPA has admitted it is nearly a decade overdue in issuing these required standards, and there is a court-ordered consent decree requiring these standards later this year nearly 11 years after EPA determined [pdf] in late 2000 that such standards were required.

So by this most important of metrics, the law makes clear that these safeguards are the right tool at the right time.

Next, overwhelming public health benefits plainly justify the timely adoption of these vital safeguards.

EPA has projected that by 2016, the proposed standards every year would avoid up to 17,000 premature deaths, 11,000 nonfatal heart attacks, 120,000 asthma attacks, and 850,000 days when people must miss work.

And here’s one crucially important fact to bear in mind: all of these quantified benefits are over and above the benefits flowing from EPA’s proposed Clean Air Transport Rule addressing sulfur dioxide and nitrogen oxide emissions. In other words, when EPA modeled the public health and pollution reduction benefits of the mercury and air toxics standards, the agency found the aforementioned benefits additive [pdf, 1-2, 3-14] to the enormous benefits from the pollution transport rule.

At a recent House subcommittee hearing where I testified, Congressman Joe Barton criticized [pdf, 78-84] the proposed mercury and air toxics standards and declared that there were no negative health effects from air pollution such as mercury or sulfur dioxide or particulate matter.

Doctors affiliated with the American Academy of Pediatrics and the American Lung Association immediately wrote [pdf] Congressman Barton to strongly reject his contentions, and the doctors attached pages of peer-reviewed studies contradicting the Congressman. The letter expressing the doctors’ “shock” over what the Congressman admitted to be little more than his own “hypothesis.”

Faced with all of this, my friend and esteemed debating opponent, Scott Segal, has also asserted that “there are no incremental health benefits associated with this rule.”

With all professional regard for Scott’s chutzpah, that argument  is absurd.

EPA found the incremental health benefits of these rules to be the enormous benefits just mentioned. Scott has conflated the longstanding analytic challenge of monetizing the benefits of reducing hazardous air pollutants with a very different claim that is insupportable and that EPA does not make, namely the claim that such reductions have no health benefits.

Power plants are the nation’s largest industrial source of the brain poison mercury, and these standards will reduce mercury by 80-90%. Similar mercury reductions from incinerators showed dramatic reductions in mercury concentrations in freshwater fish in a Florida study, addressing a primary consumption and exposure pathway for people and reducing neurotoxic mercury risks. The rulemaking’s particulate matter standard will reduce toxic heavy metals bound up as particle pollution, including metals like arsenic, nickel and chromium that cause cancer.

EPA monetized and quantified the benefits of reducing toxic particulate matter due to the availability of longstanding analytic tools and the fact that EPA has always quantified the benefits of air toxic standards in this manner, including all the Maximum Achievable Control Technology standards adopted under Mr. Holmstead’s tenure at EPA.

Only an inside-the-Beltway lobbyist could love the argument that there is something wrong with saving up to 17,000 lives and preventing 120,000 asthma attacks with pollution control equipment needed to meet these pollution standards and simultaneously reduce multiple dangerous pollutants like arsenic, lead, mercury, dioxins, sulfur dioxide and soot pollution.

But here’s the dirty little secret: it is actually the highest testament to the overwhelming public health benefits and economic benefits of these safeguards that opponents must resort to preposterous denials of these benefits. This is because opponents realize that saving tens of thousands of lives and avoiding mercury poisoning of the unborn represent extremely worthwhile benefits, accepted by the American people as common sense. Opponents understand that standards are more than justified when annual economic benefits outweigh costs by a factor of up to 13:1 in just year one of implementation, with that benefit ratio only growing larger over time.

But just as when a battery of tobacco industry lobbyists argued that cigarettes don’t cause cancer, the public doesn’t buy the arguments of a handful of utility industry lobbyists over the expertise of pediatricians, American Lung Association doctors and the Environmental Protection Agency.

For all of these reasons, these mercury and air toxics standards are the right tool at the right time.