Expert Blog

Why Do Some in Congress Want to Allow More Mercury Pollution, Asthma Attacks and Premature Deaths?

A headshot of John Walke
John Walke
Senior Advocate III, Environmental Health

Last week, some members of Congress sided with big polluters over the American people by introducing outrageous legislation to allow over 100,000 tons of toxic air pollution and over 20,000 premature deaths caused by this pollution.

Specifically, members of the House Energy and Commerce Committee introduced a bill they called the EPA Regulatory Relief Act of 2011 (H.R. 2250 [pdf]) to severely weaken and delay Clean Air Act safeguards slated to reduce mercury, toxic metals, acid gases and other hazardous air pollution from incinerators and other industrial polluters.

Mercury is a dangerous neurotoxin that damages the developing brains of children and the unborn. Other toxic air pollutants emitted by these facilities cause cancer, birth defects, and contribute to asthma attacks, bronchitis and premature deaths.

The legislation fundamentally weakens the Clean Air Act by:

Delaying current compliance deadlines for industry by a minimum of 3.5 years -- resulting in:

Overturning federal court decisions interpreting the Clean Air Act;

Deleting provisions in the Clean Air Act that courts have upheld as unambiguously clear and protective; and

Weakening the law's longstanding obligation to reduce hazardous air pollution based on the best performers in an industrial sector.

The following analysis reveals how these sweeping harms occur.

Section-by-Section Analysis of H.R. 2250

     Section 2: These provisions void EPA’s current toxic air pollution rules for industrial boilers and incinerators and prevent EPA from re-adopting new protections for a minimum of 15 months following enactment of the bill.

Health Impacts: For every year that EPA's current safeguards are delayed, between 2,500 and 6,500 lives are lost.

Analysis: This section of the bill requires EPA to redo the entire rulemaking process and does not allow EPA to finalize any regulations relating to these facilities until at least 15 months after enactment of H.R. 2250. Because the bill has little chance of even reaching the president's desk in the next few months anyway, this 15-month delay amounts to a thinly disguised political ploy to delay these standards until a new administration. And because these standards already are nearly a decade overdue under the Clean Air Act, the additional delay is a political gift to polluters that already have imposed hundreds of thousands of tons of illegal pollution and massive harms on the American people.

Finally, this section adds insult to injury by deleting two longstanding federalism provisions of the Clean Air Act that Congress adopted to grant state and local officials backstop authority to reduce toxic air pollution when EPA standards were unduly delayed.

     Section 3: These provisions further delay the law's health protections by a number of years and weaken the rigorous legal standards for reducing toxic air pollution from incinerators and other industrial polluters.

Health Impacts: For every year the rules are delayed, up to 41,000 asthma attacks result.

Analysis: Section 3(a)(1) eliminates the Clean Air Act's deadline requiring compliance no later than 3 years after standards are issued, and prohibits EPA from setting compliance deadlines any earlier than 5 years after the effective date of the standards. Coupled with the 15 month delay described above, the bill would delay the earliest possible compliance date for these facilities until late 2017 or early 2018, rather than the 2014 deadline that current standards establish.

Worse, the bill requires only that compliance deadlines not be earlier than 5 years after the effective date of the standards. This means the bill allows compliance deadlines to be set 10, 15, or even 20 years after the effective date of the regulations, drastically flouting the current statute's outside deadline of 3 years and imposing enormous pollution hazards on Americans.

Section 3(a)(2) requires the Administrator to take into consideration a laundry list of additional factors in setting the extended compliance deadlines. This laundry list is a familiar one, reflecting a list of factors that the federal appellate court for the D.C. Circuit has ruled may not be considered in setting emissions standards for toxic air pollution under the Clean Air Act. H.R. 2250 represents a poorly disguised end-run around this court precedent, authorizing delayed standards based on factors that courts have ruled to be unlawful in setting standards.

     Section 4: These provisions overturn a 2007 D.C. Circuit court decision [pdf] and adopt a definition of “solid waste” that has the practical effect of exempting virtually all waste-burning facilities from the protective standards that apply to incinerators. Instead, this bill provision exempts thousands of these facilities from any meaningful obligation to control or measure their emissions.

Health Impacts: These incinerators emit many harmful and cancer-causing pollutants including lead, dioxins, and mercury, as a result of burning chemicals, plastics, and spent solvents, among other things. Preventing this pollution would avoid many thousands of days of missed school and work.  Significantly, many companies burn waste in industrial boilers operated at smaller facilities (called “area sources”) that are not subject to any significant pollution control, monitoring, or reporting requirements. This bill would greatly increase toxic emissions by allowing and encouraging companies to burn their waste secretly in units that are not designed or equipped to handle the task safely.

Analysis: The D.C. Circuit court forcefully rejected [pdf] the very same definition of solid waste that H.R. 2250 seeks to adopt. The court held that the definition was “inconsistent with the plain language” of the Clean Air Act and the judges sent the rule back to EPA to follow the law. Section 4 of H.R. 2250 has the effect of rewriting an important section of the Clean Air Act that courts already have found to be unambiguously clear, requiring that EPA set protective incinerator standards for any unit that burns any solid waste

     Section 5: These provisions turn the current Clean Air Act's safeguards for toxic air pollution from these facilities on their head, replacing emissions standards based upon the best performers in an industry with toxic air pollution practices dictated by the lowest common denominator of industrial polluters.

Health Impact: On top of a minimum 3.5 year delay, instituting weak rules based on the worst-performing facilities would result in thousands of additional lives lost from many tens of thousands of tons of additional toxic air pollution.

Analysis: A long line of D.C. Circuit cases has soundly rejected the weaker pollution approach put forth in the legislation. The court repeatedly has affirmed that the Clean Air Act requires toxic air pollution standards to be “based on the emission level actually achieved by the best performers (those with the lowest emission levels)." In sharp contrast, section 5(a) of the bill would weaken the Clean Air Act by compelling EPA to set pollution standards based on the emissions of the dirtiest bottom-feeder boilers in operation. The court expressly held that identifying the “worst-performing source” and setting the standards “at the emission level of that source” was an “impermissible reading of the statute’s unambiguous language.”

The reason is simple. The Clean Air Act requires toxic air pollution standards to reflect the emissions reductions achieved by the best performers in the relevant industry category; dirtier plants must install pollution controls to reduce their emissions, as cleaner plants already have done. Current law prohibits the dirtiest and most deadly plants from driving standards. H.R. 2250 would turn established principles of the Clean Air Act on their head for the listed polluters, which are among the nation’s most dangerous. As a result it would authorize excessive and dangerous levels of carcinogens, neurotoxins and other toxic pollutants.

EPA Has Announced That It Does Not Need This Delay

The bill's authors claimed upon introduction that H.R. 2250 aims to give “EPA the time it needs – the time it has requested – to address difficult technical issues and develop rules that are workable in the real world.” 

In reality, H.R. 2250 imposes indefensible delays to standards that EPA already has announced it is re-examining on a much shorter time horizon.

On Friday, EPA issued a press release saying in essence “thanks, but no thanks” to the bill. The agency announced a timeline that requires final rules by April 2012, noting that this timeline “is the best approach to put in place technically and legally sound standards that will bring significant health benefits to the American public.”

Precisely because there is no need for Congressional intervention, H.R. 2250 immediately reveals itself to be a vehicle for sweeping attacks on the Clean Air Act itself: delaying outside compliance dates, overturning multiple statutory provisions and governing court decisions, and weakening the core legal test for reducing toxic air pollution under the Act.

EPA has signaled it does not want or need this delay, and the breathing public cannot afford such a setback.

Every single provision in the bill weakens current law to allow more toxic air pollution, more disease, and more deaths. 

The only relief the bill grants is to toxic polluters, while Americans are left to suffer the toxic consequences.