EPA Ignored Science When Regulating Power Plant Mercury Emissions
NOTE: The following is one of a series of case studies produced by the Union of Concerned Scientists' Scientific Integrity Program between 2004 and 2010 to document the abuses highlighted in our 2004 report, Scientific Integrity in Policy Making.
The George W. Bush administration has long attempted to avoid issuing new standards to regulate mercury emissions by coal-fired power plants based on Maximum Achievable Control Technology (MACT), as required by the Clean Air Act. Mercury is a neurotoxin that can cause brain damage and harm reproduction in women and wildlife; coal-fired power plants are the nation's largest source of mercury air emissions, emitting about 48 tons annually.
Instead, senior Bush officials suppressed and sought to manipulate government information about mercury contained in an Environmental Protection Agency (EPA) report on children's health and the environment. As the EPA readied the report for completion in May 2002, the White House Office of Management and Budget and the Office of Science and Technology Policy (OSTP) began a lengthy review of the document. In February 2003, after nine months of delay by the White House, a frustrated EPA official leaked the draft report to the Wall Street Journal, including its finding that eight percent of women between the ages of 16 and 49 have mercury levels in the blood that could lead to reduced IQ and motor skills in their offspring.
The finding provides strong evidence in direct contradiction to the administration's desired policy of reducing regulation on coal-fired power plants and was, many sources suspect, the reason for the lengthy suppression by the White House. On February 24, 2003, just days after the leak, the EPA's report was finally released to the public. Perhaps most troubling is the suspicion that the report may never have surfaced at all had it not been leaked to the press.
In a more recent development, the new rules that the EPA finally proposed for regulating power plants' mercury emissions were discovered to have no fewer than 12 paragraphs lifted, sometimes verbatim, from a legal document prepared by industry lawyers. When challenged, EPA officials contended that the language crept into their proposed rules "through the interagency process." But Robert Perciasepe, who headed the EPA air policy office during the Clinton administration, called the wholesale use of industry language "inappropriate." As Perciasepe told a Washington Post reporter, "The regulations are supposed to be drafted by the staff—the people in the science program and regulatory branches."
Drawing upon interviews with no fewer than five current career employees, reporters at the Los Angeles Times exposed in detail the process that led to the proposed mercury regulations. According to these and other sources, political appointees at the EPA completely bypassed agency professional and scientific staff as well as a federal advisory panel in crafting the proposed new rules.
Bruce C. Buckheit, who retired in December 2003 as director of EPA's Air Enforcement Division after serving in major federal environmental posts for two decades, says that his enforcement division was not even allowed to review the mercury regulations prior to their release. As Buckheit puts it, "the new mercury rules were hatched at the White House; the Environmental Protection Agency's experts were simply not consulted at all."
In particular, EPA staff members say they pointed out the fact that comparative scientific studies of the effects of the proposed rules were required by EPA procedure. But these EPA staffers contend that they were explicitly told by Jeffrey R. Holmstead, head of EPA's Office of Air and Radiation, that such studies would not be conducted partly because of "White House concern." Buckheit and other EPA veterans say they cannot recall another instance when the agency's technical experts were so thoroughly shut out of the process in developing a major regulatory proposal. According to Buckheit, the incident is representative of "a degree of politicization of the work of the Environmental Protection Agency" by the Bush administration "that goes beyond anything I have seen in my career in government."
In the wake of these serious allegations, EPA Administrator Michael Leavitt reportedly ordered additional studies of the effects of the proposed mercury rule. Administrator Leavitt also said information related to media reports on the agency's inclusion of industry-drafted language in its proposed rule had been forwarded to the EPA's inspector general for possible investigation.
In February 2005, the EPA's own inspector general reported that agency scientists had been pressured to change their scientific findings in order to justify the Administration's industry-friendly rules. The report recommended that additional analysis was needed before the rule was finalized. Days later, a Government Accountability Office report found that the EPA had distorted its analysis of the health impacts of mercury on brain development in children and fetuses.
Despite these warnings, and to the great dismay of scientists and public health professionals, the EPA issued its final rule on March 15, 2005 without revisiting the egregiously manipulated and distorted science behind the rule.
After the mercury rule was finalized, the Washington Post reported that EPA officials purposefully omitted the results of a Harvard study—paid for by taxpayer dollars—which showed that the costs of mercury pollution and the benefits of a regulation stronger than the administration's proposal were higher than previously thought.
Update: On February 8, 2008, the U.S. Court of Appeals for the D.C. Circuit found that the EPA had illegally violated the Clean Air Act’s requirements of significant and timely reductions in toxic air pollution, including mercury, from the nation’s coal-fired power plants. The EPA had been unpersuasive in showing that the levels of toxic emissions from power plants allowed by the rule would not have adverse health and environmental effects. In response to this decision, the EPA will likely develop MACT standards to control mercury emissions.
Note:This page is an excerpt from the 2004 UCS report Scientific Integrity in Policymaking and subsequent updates
1. E. Pianin, "White House, EPA Move to Ease Mercury Rules," Washington Post, December 3, 2003.
2. See "EPA proposes options for significantly reducing mercury emissions," December 15, 2003. See also Mercury MACT Proposed Rule and other source material at www.nwf.org/news.
3. J.J. Fialka, "Mercury Threat to Kids Rising, Unreleased EPA Report Warns," Wall Street Journal, February 20, 2003.
4. "America's Children and the Environment: Measures of Contaminants, Body Burdens, and Illnesses," Second Edition, February 2003.
5. See E. Pianin, "Proposed Mercury Rules Bear Industry Mark," Washington Post, January 31, 2004.
7. Tom Hamburger and Alan C. Miller, "Mercury Emissions Rule Geared to Benefit Industry, Staffers Say," Los Angeles Times, March 16, 2004 and author interviews with two other current EPA staff members, names withheld on request, March 2004.
8. Author interview with Bruce Buckheit, March 2004.
9. As quoted in Hamburger and Miller, Los Angeles Times, March 16, 2004. It is also highly relevant to note that, prior to his appointment by the current administration, Jeffrey R. Holmstead served as an attorney representing industry interests on air pollution issues at Latham & Watkins, one of the firms responsible for the exact wording of the text in the EPA's proposed mercury rule.
10. Author interviews with Bruce Buckheit and with two other current EPA staff members, names withheld on request, March 2004.
11. "IG May Launch Investigation Into Industry Influence Over EPA Mercury Plan," Inside EPA, March 25, 2004.
12. Inspector General of the U.S. EPA, "Additional Analyses of Mercury Emissions Needed Before EPA Finalizes Rules for Coal-Fired Electric Utilities," February 3, 2005. Online at http://www.epa.gov/oig/reports/2005/20050203-2005-P-00003.pdf.
13. U.S. Government Accountability Office, "Observations on EPA's Cost-Benefit Analysis of Its Mercury Control Options," February 2005. Online at http://www.gao.gov/new.items/d05252.pdf.
14. S. Vedantam, "New EPA Mercury Rule Omits Conflicting Data," Washington Post, March 22, 2005. Online at http://www.washingtonpost.com/wp-dyn/articles/A55268-2005Mar21.html.
15. New Jersey v. EPA, 517 F.3d 574, 583-84 (D.C. Cir. 2008). Online at http://pacer.cadc.uscourts.gov/docs/common/opinions/200802/05-1097a.pdf
16. John Walke, F.A.Q. About the Court Decision Overturning EPA’s Illegal Mercury Rule for Power Plants. Online at http://switchboard.nrdc.org/blogs/jwalke/faq_about_the_court_decision_o.html.
17. Jana B. Milford & Alison Penciak, After the Clean Air Mercury Rule: Prospects for Reducing Mercury Emissions from Coal-Fired Power Plants, Environ. Sci. Technol. 43, 2669–2673 (2009).