The New House of Representatives Must Compel EPA to Enforce our Environmental Laws

by |January 2, 2019

In 1971, when EPA was only one year old the great popular musician Marvin Gaye wrote and recorded “Mercy, Mercy Me (the ecology).” In that song he sang: “Whoa mercy, mercy me, Oh things ain’t what they used to be, no no –Oil wasted on the oceans and upon our seas, fish full of mercury.” Sadly, Marvin Gaye is long gone, but his music and message are as meaningful today as they were nearly a half century ago. We have made tremendous progress cleaning up our environment while growing our economy, but the overly ideological and scientifically illiterate people running our national environmental agencies are hard at work trying to undermine the successful environmental laws and rules that keep us safe.

As Lisa Friedman reported in last weekend’s New York Times:

“The Trump administration proposed on Friday major changes to the way the federal government calculates the benefits, in human health and safety, of restricting mercury emissions from coal-burning power plants. In the proposal, the Environmental Protection Agency issued a finding declaring that federal rules imposed on mercury by the Obama administration are too costly to justify. It drastically changed the formula the government uses in its required cost-benefit analysis of the regulation by taking into account only certain effects that can be measured in dollars, while ignoring or playing down other health benefits.”

Trump’s new method of calculating costs and benefits measures costs as exhaustively as possible but does not measure indirect benefits. A major benefit of reducing exposure to mercury when you burn coal is that you also reduce exposure to routine, particulate air pollution. While not as toxic as mercury, breathing that coal dust causes massive harm, for example, to the human respiratory system. In addition to the issue of changing cost-benefit methods, there is the issue of quantifying pain and suffering in dollars. The cost of compliance with mercury regulations may be high, but mercury is a dangerous toxic substance.

According to the World Health Organization:

  • Mercury is a naturally occurring element that is found in air, water and soil.
  • Exposure to mercury – even small amounts – may cause serious health problems, and is a threat to the development of the child in utero and early in life.
  • Mercury may have toxic effects on the nervous, digestive and immune systems, and on lungs, kidneys, skin and eyes.
  • Mercury is considered by WHO as one of the top ten chemicals or groups of chemicals of major public health concern.

When discussing how to reduce human exposure to mercury, WHO advises that we should avoid burning coal for energy and maintains that:

“Burning coal for power and heat is a major source of mercury. Coal contains mercury and other hazardous air pollutants that are emitted when the coal is burned in coal-fired power plants, industrial boilers and household stoves.”

How do you set a price on the benefit of avoiding poisoning an unborn baby? How do you price the agony of knowing that the neurological damage to a child could have been avoided if the narrow analysis of costs and benefits had been expanded to include a consideration of the ethics of putting profits above people? Even if you are unwilling to conduct a comprehensive analysis of economic costs and benefits, what of the morality of poisoning humans? Why is Trump so eager to burn this filthy fuel when there are cleaner, cheaper alternatives?

The world view of the people running America these days considers promoting private profit to be the highest purpose and goal of public policy. The president calls us suckers for aiding nations that need our help. Nature in his view is simply there to be exploited. Businesses should be allowed to pollute as much as they want, as long as they make money while doing it. The sad part of this approach is that we used do things that way, but the costs of cleaning up the messes we made turned out to be much higher than if we’d done a better job of management and had avoided making a mess in the first place. Nearly four decades after Superfund was enacted in 1980, America’s corporations, military and ultimately tax payers have paid somewhere between $500 billion and a trillion dollars to detoxify our land. We humans are living creatures and even if some short-term jobs and wealth are generated when we pollute, we can’t spend the money if we’re dead, and in the long term someone will pay the costs of poisoning the planet. In the old days, engineers would sometimes say that the solution to pollution is dilution. The reality is that the solution to pollution is prevention.

We are at the end of two years witnessing the awful spectacle of an Environmental Protection Agency and Interior Department more interested in exploiting natural resources than protecting them. But starting today, the unified control of the national government by President Donald Trump and his enablers has ended. Let the Congressional oversight begin. I know these elected officials thrive on the spotlight and will gravitate toward the scandals and the high-profile nonsense this administration seems to specialize in. But I urge the House to get into the weeds for the subtle nuances that Interim EPA Administrator Wheeler has inserted in every rule he has proposed since replacing the more flamboyant but less effective Scott Pruitt. Please focus on the serious and substantive threats to our well-being, rather than the issues your campaign consultants will tell you poll well. Climate is critical, but it is not the only environmental threat we face.

We know that the new House leadership is preparing for their new role, As the Washington Post’s Dino Grandoni and Julie Eilperin wrote shortly after the mid-term election:

“Three likely incoming Democratic chairs of House committees overseeing environmental issues vowed to scrutinize the Trump administration’s actions on climate change and bring before them top administration officials who they think have escaped adequate oversight under their Republican colleagues. After eight years out of power in the House, Reps. Eddie Bernice Johnson (Tex.), Raúl Grijalva (Ariz.) and Frank Pallone Jr. (N.J.) are expected to lead the committees on Science, Space, and Technology; Natural Resources; and Energy and Commerce, respectively, after serving as the panels’ ranking Democrats. In a slate of interviews, they outlined an expansive agenda to put a hot spotlight on the Trump administration’s rollback of President Obama’s climate agenda and to delve deep into alleged misconduct of officials at the Environmental Protection Agency, Interior Department and the Housing and Urban Development Department.”

The heart of Wheeler’s relatively sophisticated attack on environmental law is to question and revise the methods used to analyze the costs and benefits of regulation. The costs of a regulation are always relatively easy to calculate you examine what an operation cost before the rule and what it costs afterward. While even that can be more complicated than it seems, it is still far simpler than calculating benefits. If the town installs a new stop light the cost includes the equipment, installation, upkeep, slower traffic and the benefit is fewer crashes. But how do you measure the benefit of fewer crashes—is it just the cost of the auto repair, or does it extend to the health impact of the human victims? What about the psychological impact on a child who might lose a parent in a car crash?  As for measuring the cost, what if the new technology the factory installs has the side effect of making the factory more energy efficient? What if the engineers hired for environmental compliance also work on other improvements to the operation? Regulatory requirements often require out-of-date operations to modernize in order to comply, and that modernization often has significant unintended benefits. For example, there is compelling evidence that environmental and safety regulations led to significant improvements in other aspects of motor vehicle technology.

The attack on regulatory analysis will not generate the media coverage of many of the Trump era scandals, but could have a long-term impact on how environmental statutes are interpreted by the many conservative federal judges appointed over the past several years. It is important to shed light on this effort to subvert our environmental laws and to teach the media and public about the importance of these methods of regulatory impact analysis. In the hyper-partisan environment of our nation’s capital I suspect that the Democratic congress will focus on spectacle over substance, but I hope that the new House of Representatives will find the time to compel EPA to enforce our environmental laws.

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