Thousands of Babies Clapping: Lisa Jackson Brings Mercury Home

by Rena Steinzor

March 16, 2011

My bet is that EPA Administrator Lisa Jackson will do a little victory dance in her office before going home this evening. She’s earned it. After 20 years of false starts, EPA is issuing today the first proposed rule to control poisonous mercury emissions from power plants. They’re doing it despite a concerted blast of coal company and electric utility lobbying at the upper levels of the White House. Jackson’s achievement is testimony to her exemplary leadership of EPA in difficult times, but more than that, it’s a huge win for the babies of America, an estimated 630,000 of whom are born annually with blood mercury levels in excess of what experts consider safe.

The Mad Hatter in Lewis Carroll’s Alice in Wonderland was the first widely recognized victim of mercury poisoning. When Carroll was writing, mercury was used to keep hats stiff, giving rise to the expression, “mad as a hatter.”  Highly toxic in very small amounts, mercury poisoning disrupts the neurological development of babies in utero and breast-fed infants. Fish consumption is the primary pathway for such exposure, and mothers who are nursing or pregnant are counseled to watch their intake of fish at the higher end of the food chain—tuna, swordfish, and large-mouth bass, for example.

EPA was on the cusp of issuing a rule requiring power plants that burn coal to install equipment that would capture mercury before it vaporizes up the stack in 2005 when attorneys at Latham & Watkins persuaded their former partner, Bush EPA official Jeffrey Holmstead, to do a U-turn in the middle of the road. The result was a toothless rule allowing the plants to trade “allowances” to emit mercury beginning in 2018, at levels so high the problem would have persisted into the middle of the 2020s. The scheme was in flagrant conflict with EPA’s statutory mandate, so environmentalists sued. A three-judge panel that included Janice Rogers Brown, a controversial conservative Bush appointee, slapped the agency’s warped interpretation down very quickly, writing that EPA’s argument in defense of its rule “deploys the logic of the Queen of Hearts, substituting EPA’s desires for the plain text” of the Clean Air Act. (Readers may remember that the Queen of Hearts, another beloved Lewis Carroll character, marched around screaming “off with their heads, off with their heads” when aggravated.

The other heroes in this cautionary tale are the states, some two dozen of which adopted mercury rules of their own, forcing utilities dependent on coal-fired plants (that is, the vast majority of such companies in America) to stop belly-aching and develop the technology needed to trap the mercury as quickly as possible. By 2009, the Government Accountability Office reported that “commercial deployments and 50 Department of Energy and industry tests of sorbent injection systems have achieved, on average, 90 percent reductions in mercury emissions. These systems are being used on 25 boilers at 14 coal-fired plants, enabling them to meet state or other mercury emission requirements—generally 80 percent to 90 percent reductions.”

These developments make all the more stomach-turning the frantic buzz inside-the-Beltway last week as the owners of coal-fired plants deluged the White House's Office of Information and Regulatory Affairs. It was as if all the events of the last several years—including and especially the fact that so many states had required them to achieve reductions—had never happened. Such craven self-interest is the watchword these days in Washington.  But this time it didn’t work.

What’s the sound of thousands of babies clapping? If you listen carefully, you can imagine falling down the Looking Glass hole and hearing that applause.

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Also from Rena Steinzor

Rena Steinzor is a Professor of Law at the University of Maryland Francis King Carey School of Law, and a past president of the Center for Progressive Reform. She is the author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.

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