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Volume 34, Issue 6 — June 2004

Articles

A Perfect Storm: Mercury and the Bush Administration, Part II

by Lisa Heinzerling and Rena I. Steinzor

The Storm Continues

In December 2003, the U.S. Environmental Protection Agency (EPA) proposed a rule to control mercury emissions from power plants and issued a final rule for mercury from chlor-alkali facilities. For power plants, EPA offered a mélange of proposals, while making clear that it strongly prefers to allow commercial trading in this toxic substance, imposing only minimal, long-delayed additional controls for mercury. For chlor-alkali facilities, EPA announced it simply did not know where as much as 65 tons of mercury (more than the mercury now emitted by all of the power plants in the country) 3 had gone--"somewhat of an enigma," EPA called it4--and then essentially grandfathered the nine old chlor-alkali facilities that still use mercury as an input to production.

In the first installment of this two-part series, we argued that four powerful pressure systems--a "perfect storm," we said--should have combined to avoid these unhappy results. Science, law, economics, and justice all pointed clearly in the direction of swift and stringent controls on mercury emissions. In that Article, we focused on science and law, first canvassing the large scientific consensus concerning the threats posed by mercury and then detailing the legal problems with EPA's actions. Since we wrote the Article, our discussion of the risks of mercury has gained even greater currency with the issuance of a new advisory by EPA and the Food and Drug Administration (FDA), which for the first time warns pregnant women, women of child-bearing age, and their children about the mercury-related risks of eating that great American staple, canned tuna.

Industry Files Litigation Against New Jersey Opposing Aggressive Natural Resource Initiatives

by E. Lynn Grayson

An industry coalition filed suit in March 2004, against the state of New Jersey opposing highly criticized tactics, including the state's use of a New Orleans-based firm known for representing plaintiffs in toxic tort and related litigation, to recover money damages for natural resource claims. The action seeks to end the state's plan to rely upon contingent fee attorney Allan Kanner to sue more than 80 companies for alleged damages to natural resources. The lawsuit highlights industry concerns over the aggressive program recently launched by the New Jersey Department of Environmental Protection (NJDEP) to recover for alleged losses and injuries resulting from natural resource damages (NRDs).

Federal and state trustees often lack sufficient resources to appropriately address legally and technically complex NRD matters. NJDEP's new initiative seeks to overcome this common problem, in large part by attempting to shift the necessary assessment and restoration work to private parties as well as by encouraging speedy resolution of legal liability issues. This innovative effort by NJDEP imposes unique legal challenges on targeted private parties as well as significant potential financial burdens.

EPA's Lag in Responding to Scientific Advancements: A Reply to Conrad

by Wendy E. Wagner

Responding to the latest scientific advancements is not a simple matter for the U.S. Environmental Protection Agency (EPA). A number of factors--such as the extent to which the new information intersects with EPA's statutory mission, as well as the quality of the research--necessarily impact EPA's response to this new science. Because statutory requirements often direct EPA to err on the side of safety, scientific developments that indicate the possibility of unexpected, serious harms are of more immediate interest to regulators than studies that suggest that greater concentrations of pollutants can be tolerated. Similarly, the fact that EPA does not immediately embrace the latest model or scientific study could be to its scientific credit in some regulatory settings. Studies produced under funding conditions that do not ensure full independence of the researchers, for example, might need to undergo added peer review and sometimes even replication before the studies can be accepted as reliable for purposes of regulation.

In a recent article on the subject, The Reverse Science Charade, James Conrad generally ignores these nuances in leveling vigorous charges that EPA has dallied unduly in its acceptance of scientific developments offered by private parties. Specifically, Conrad argues that private research, generally taking the form of human subjects research or innovative models that are more sensitive to differing mechanisms of carcinogenesis and toxicity, are underappreciated by EPA. Despite his numerous case studies and specific indictments, however, Conrad fails to substantiate the reliability of this new research, to account for differences in statutory mandates that affect how quickly EPA should incorporate the new science into regulation, or to put the problem he identifies within the larger context of regulatory science.

The History and Evolution of the National Marine Sanctuaries Act

by William J. Chandler and Hannah Gillelan

Executive Summary

Coastal and ocean degradation caused by pollution, industrial and commercial development, and ocean dumping became major environmental issues in the 1960s and early 1970s. Public awareness of ocean problems was heightened by oil spills, "dead seas" created by the dumping of dredge spoil and sewage sludge, and numerous scientific reports detailing the environmental decline of coastal areas. In response, the U.S. Congress considered and approved a number of remedial measures to protect coasts and estuaries including federal assistance to states to develop coastal zone management plans, new water pollution and ocean dumping controls, and the creation of programs to establish estuarine and marine sanctuaries.

The Marine Protection, Research, and Sanctuaries Act (MPRSA) of 1972 authorized a trio of programs to protect and restore ocean ecosystems. The Act regulated the dumping of wastes in ocean waters, launched a study of the longterm impacts of humans on marine ecosystems, and created a Marine Sanctuaries Program for the "purpose of preserving or restoring [marine] areas for their conservation, recreational, ecological, or esthetic values." Early proponents of marine sanctuaries envisioned a system of protected ocean areas analogous to those established for national parks and wilderness areas.