The Audacity of HAPs in Wonderland

• Author: John Walke
• Position: Senior Attorney and Director of the Clean Air Program at the Natural Resources Defense Council in Washington, D.C.
• Pages: 49-49

MAY/JUNE 2011 ❧ Page 49

Copyright © 2011, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, May/June 2011

Th e fo r u m

e Audacity

of HAPs in

Wonderland

J W

By 2014, as many as

150,000 deaths will

have resulted from the

unlawful failure to adopt

Clean Air Act standards

reducing mercury and other Hazard-

ous Air Pollutants, or HAPs, from

power plants that burn coal and

oil. A decade of preventable deaths

and misery for many thousands of

Americans due to opposition by

dirty utilities and lawbreaking by

EPA under the prior administration.

When EPA’s recently proposed

Maximum Achievable Control

Technology, or MACT, standards

for power plants become ef‌fective

in 2015, however, the health gains

will be truly staggering: as many

as 17,000 American lives saved every

year; up to 120,000 instances of

avoided childhood asthma symp-

toms and 11,000 fewer cases of

acute bronchitis among children;

and over 12,000 hospital visits

avoided.

Segments of the coal-dependent

utility industry and their lawyer-

lobbyist infantry continue to wage

war to deny these enormous health

benef‌its to the American people.

eir historic and continuing oppo-

sition has led me to identify a Clean

Air Act axiom for polluters, whereby

there is an inverse relationship be-

tween the strength of gains from

public health standards and the

weakness of legal-policy arguments

by the standards’ opponents.

I call this axiom Lewis Carroll’s

Law in honor of the D.C. Circuit

decision excoriating the Bush ad-

ministration’s evasion of the Clean

Air Act obligation to reduce power

plants HAPs using the law’s rigor-

ous MACT standards. In 2008’s

New Jersey v. EPA, a unanimous

court compared EPA’s legal viola-

tions to the capricious Queen of

Hearts in Carroll’s Alice in Wonder-

land, since EPA had— in the court’s

words — “substituted [its] desires

for the plain text” of the law.

Here is how Lewis Carroll’s Law

has emerged in early utility industry

opposition to the proposed mercury

and air toxics standards.

e audacity of saving lives. Un-

able to delay the toxics standards

further, or counter the legal basis for

EPA’s actions after the New Jersey

decision, some industry critics now

protest that EPA is wrongly saving

lives by reducing deadly particulate

matter and hazardous air pollutants

simultaneously with the same con-

trol equipment that will meet the

proposed MACT standards. ese

industry critics argue that EPA is

“double counting” the benef‌its of re-

ducing particulate matter, by which

they mean saving lives through

MACT authorities, when particulate

matter supposedly is the exclusive

province of the criteria pollutants

programs under Title I of the Clean

Air Act.

How dare EPA gratuitously save

up to 17,000 lives annually by using

well-established legal authority to

reduce deadly particulate matter that

is both hazardous in nature, like the

metals, or co-controlled by equip-

ment required to meet the various

air toxics performance standards. No

matter that the legal basis for EPA’s

proposed performance standards is

well-grounded, and MACT stan-

dards have reduced particulate mat-

ter and quantif‌ied benef‌its on that

basis for nearly two decades.

But it is one measure of the des-

peration accompanying opposition

to these life-saving standards that

critics have been reduced to a mix of

arguments that are legally erroneous,

painfully formalistic and morally

objectionable.

e audacity of reducing neuro-

toxins and carcinogens. Some utility

industry critics long have argued

that EPA has no business reducing

utility hazardous air pollutants like

mercury, arsenic, and lead through

MACT standards, as EPA has done

for over 100 other industrial source

categories for the past two decades.

Section 112(e)(4) of the act autho-

rizes challenges to EPA decisions to

“list” industries for MACT regula-

tion when the agency issues f‌inal

emissions standards, and industry

attorneys will mount such challenges

with fury.

ese attorneys will be reduced

to repeating legal arguments that

already have been rejected by every

court to hear them (e.g., fanciful

Section 112(n) arguments); con-

torting to explain why scores of the

same hazardous pollutants specif‌i-

cally listed by Congress and con-

trolled from hundreds of industrial

sectors should not be reduced using

Section 112’s prescribed MACT

standards; and ducking publicly any

explanation why the largest emitters

of mercury, arsenic, lead, dioxins,

and other carcinogens should escape

control of these poisons.

is unenviable assignment will

fail in the court of public opinion

and the courts.

And so it should, since air pol-

lution from coal-f‌ired power plants

has inf‌licted a greater health toll

upon the American people than any

other source of air pollution. It will

be 25 years after the 1990 Clean

Air Act Amendments before power

plants that burn coal and oil f‌inally

reduce their Hazardous Air Pollut-

ants to levels demanded by the law.

e best word to capture the

continuing ef‌forts to delay or block

these life-saving standards is auda-

cious.

John Walke is a Senior Attorney and Direc-

tor of the Clean Air Program at the Natural

Resources Defense Council in Washington,

D.C.