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

June 2004

Citation: 34 ELR 10485

Issue: 6

Author: 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.

Lisa Heinzerling is a professor at the Georgetown Law Center. She is the author, with economist Frank Ackerman, of Priceless: On Knowing the Price of Everything and the Value of Nothing (The New Press 2004). She thanks Trevor Wiessmann for excellent research assistance. Rena I. Steinzor is a professor at the University of Maryland School of Law. She is working on a longer analysis of the policies that underlie failures to control toxics, including mercury, that harm children. She thanks Raymond Schlee for excellent research support. Heinzerling and Steinzor are both member scholars of the Center for Progressive Regulation, http://www.progressiveregulation.org. Comments regarding this Article should be directed to heinzerl@law.georgetown.edu or rstein@law. umaryland.edu. The first part of this Article was published at 34 ELR 10297 (Apr. 2004).

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