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What You Need To Know About Toxic Chemicals in Your Neighborhood – #4

Posted in PAHs/PNAs, Perchlorate, Petroleum Contamination (BTEX), Uncategorized, Xylene

By Shawn Collins and Edward Manzke of The Collins Law Firm, P.C.

Co-authored by Cassidy Carroll and Jacob Exline of The Collins Law Firm, P.C.

Over the last 15 years, many of our environmental contamination cases have started the same way. A family gets the startling news that their water is contaminated with some toxic chemical that they’ve never heard of. Sometimes the news comes in a letter in the mail from a government agency. Sometimes it’s a knock on the door from a government worker. The details are few, but the gist of what the family is told is that some company-perhaps the factory up the street-years ago dumped industrial waste out the back door. Over the years, the chemicals in that waste bled down through the soil, and are now in the groundwater that serves as the family’s supply of water for drinking, preparing food and bathing.

Mom or dad then tries to figure out what to do. They’re scared and angry all at the same time. Their thoughts are: “How could someone do this to us?” “Why weren’t we told before?”

And then there’s this one: “What is this chemical, and what can it do to my family?”

To help families in precisely this unfortunate situation, we’ve compiled short and easy-to-read summaries of the important facts about those chemicals most likely to be found contaminating drinking water. All you need to do is click on the chemical’s name below, and you will find a snapshot of useful information that can help you protect your family. While there are more toxic chemicals out there than we have provided, we are dedicated to updating and adding more toxic chemicals to our list to better help families. If you need any further information, please contact us.

Perchlorate
Petroleum Contamination (BTEX)
Polycyclic/Polynuclear Aromatic Hydrocarbons (PAHs/PNAs)
Xylene

 

 

JUST THE LATEST REASON FOR AMERICANS TO BE ANGRY AT THE POLITICAL ESTABLISHMENT: Members of Congress Immediately Protect Themselves Against Possible Lead Exposure, While “Regular” Americans are Routinely Denied Environmental Protection 

Posted in Government, Lead, PCE, Pollution, TCE, Uncategorized

Day after day these days, we see expressions of clueless bewilderment from government officials:  “Why are the people so mad at us?”   “Why do they hate us?”  “Why are they so anxious to throw us out of office?”

 There are, of course, a thousand reasons, but none more revealing of what’s broken about our government than this:  While every branch of our government—Executive, Congressional, Judicial—has been working overtime to deny basic environmental protections to American citizens, when these same officials are threatened by contamination in their environment, protection for them arrives swiftly and surely.

Cases in point:

  • The lead-infested water of Flint, Michigan.  The State of Michigan tried to save a few bucks by taking Flint families off of their safe water supply, and connecting them to a water system whose pipes were badly corroded, and spewed dangerous levels of lead into the families’ drinking water.  Even though Congress has the money to protect Flint from the lead, it has again and again refused to do so, threatening many more months and possibly years of lead poisoning of the children of Flint.
  • TCE contamination at Camp LeJeune, North Carolina.  Lawyers dispatched by the Obama administration went to court, and successfully argued that military families and their children who had been poisoned by the TCE and PCE-laced water at the Camp LeJeune military base would not be allowed to sue for their injuries.1
  • The fatal pollution from coal-burning plants.  The United States Supreme Court halted enforcement of new environmental standards for coal-burning plants, with the majority of the court refusing even to consider that the new standards would have saved thousands of lives every year, mostly in poor minority communities.2

Now, keep these stories in mind as you consider this:  when, just last week, members of Congress learned that the water in one of their office buildings contained concentrations of lead exceeding the actions levels set by the EPA, they:

  • Arranged immediately to make blood testing—free blood testing– available for them and their staffs, to see if they had been exposed to the lead.  And if lead is found in their blood, no doubt additional, cost-free medical testing and treatment will be at their immediate disposal.
  • Ensured prompt testing throughout all buildings in which members of Congress work, to see if the lead contamination has spread.
  • Made it a priority to find the source of the lead contamination, and fix it. 3

 So when it comes to protecting the lives and health of the poor living in the shadows of coal plants; minorities living in our rotting, third-world caliber industrial cities; or even dedicated service people living on military bases, government officials invoke “cost” and dozens of other reasons to use their power to deprive these citizens of the protection of the very laws the officials have sworn to uphold.  But when it is the lives and health of these same officials that may have been even momentarily threatened, then no expense is to be spared to protect them.

The inescapable message to us from our government officials is this:  “Our lives mean more than your lives”.

No wonder the people are so angry.

1 http://www.rollcall.com/news/Obama-Administration-Moves-to-Deny-Justice-for-Camp-Lejeune-Veterans-234417-1.html

2 http://www.pollutionlawwatch.com/2015/07/life-saving-regulation-of-toxic-power-plant-emissions-declared-invalid-by-us-supreme-court/

3 http://www.huffingtonpost.com/entry/cannon-water-lead-capitol-hill_us_577d0c3de4b0416464113974

Portland Parks Director Needs to “Get” that Lead Contaminated Drinking Water is Dangerous…or Quit His Job!!

Posted in Contamination, Lead, Uncategorized, Water

PORTLAND PARKS DIRECTOR NEEDS TO ‘GET’ THAT LEAD-CONTAMINATED DRINKING WATER IS DANGEROUS…..OR QUIT HIS JOB

 A recent review of the Portland Parks and Recreation’s (PPR) handling of high levels of lead contamination in the drinking fountains at the Multnomah Arts Center concluded that the agency failed for years in its duty to protect citizens, especially kids, from the contamination.  In a nutshell, the review found that PPR was aware since at least 2013 that lead levels in the water at several of the drinking fountains were unacceptably high, according to EPA standards, but ignored those results.  The review also found other evidence of PPR’s shocking disregard of the health threats posed by the lead-contaminated water, including:

  • PPR staff’s ignoring of a directive to replace lead plumbing;
  • tests taken in 2015 specifically to determine if there was lead contamination in the water were never analyzed;
  • staff cancelled work orders for the installation of water filters that would eliminate or reduce lead content in the water;
  • April, 2016 PPR records were changed to show that work had been done to remedy the lead problem, but there is no record to show that this work had actually been done.

Read the full article here:  http://www.kgw.com/news/health/deep-rooted-problems-at-portland-parks-rec-kept-lead-issues-quiet-for-years-review-finds/265431423

Perhaps even worse than all of this, though, is the public statement attributed earlier this week to PPR Director, Mike Abbate, who downplayed the significance of lead in the drinking water.  According to Abbate:

“As we look at lead in water and evaluate it as a public health risk, it’s not nearly as significant an issue as other kinds of environmental exposures.” (my emphasis)

What!?  Lead contamination in Portland drinking water is not that big of a deal because it won’t hurt kids as badly or quickly as other toxins!?  Lead contamination should be tolerated…. because there’s something worse?

This sounds like the excuse offered by some industrial polluter from the early 20th century, before the many and serious health dangers from exposure to lead became known.  For the benefit of Mr. Abbate, and the visitors to his Multnomah Arts Center that may be threatened by his apparent ignorance, our National Institute of Health has said this for many years about the dangers of lead in our drinking water and environment:

No amount of lead is safe. Eliminating all lead exposure in our environment is our best course of action.” (my emphasis).

The following health issues in children exposed to lead have been reported:

  • decreased academic achievement
  • decreased hearing
  • lower IQ scores
  • delayed puberty
  • decreases in postnatal growth
  • increases in behavioral problems and attention related disorders

The following health risks for adults exposed to lead have been reported:

  • nerve disorders
  • cardiovascular effects
  • decreased kidney function
  • memory or concentration problems
  • fertility problems
  • increased blood pressure and hypertension
  • increased incidences of essential tremors

(Read about the health risks of lead exposure here:   http://www.niehs.nih.gov/health/topics/agents/lead/)

The bottom line here?  Lead in drinking water is dangerous.  Mr. Abbate need to “get” that, ASAP.  Or he needs to step aside, in favor of someone who does.

 

 

 

BROKEN GOVERNMENT THREATENS A SAFE ENVIRONMENT

Posted in Government, Pollution

Here’s a good example of why we don’t trust our government.1

A lawyer named Bob Sussman used to work at the Environmental Protection Agency in Washington, DC from 2009 to 2013.  While he was at EPA, Sussman was involved in the agency’s decision to seek lower limits on allowable ozone pollution.2  So that there would be less ozone in the environment.  Because ozone pollution is significantly responsible for the climate change that threatens the planet and all who live on it.

Then, Sussman left EPA.  He went to work consulting for some of the world’s biggest polluters, like BP Amoco.

And earlier this year, while working for BP Amoco, Sussman went to EPA, and helped the company argue that the limits on ozone pollution should not be lowered after all, or at least not as much as EPA wants to lower them.

In other words, Sussman got paid by BP Amoco to go to EPA, and argue against the very same ozone rules that he had helped develop when he worked for EPA.

The easiest shot to take here is to say that the standard for allowable ozone pollution should not change depending on who happens to be paying Bob Sussman at the moment—the taxpayers, or BP Amoco.

But this problem is a lot bigger than Bob Sussman.  Sussman would defend himself by saying that he has broken no laws….and the fact that he is right in saying so is the saddest part.  The truth is that our laws and regulations are often made by elected and agency officials who are the future paid consultants to the very companies that are threatened by those rules, and want them weakened. And who better to try to weaken them than the very officials who made them, and know who to talk to in order to get them either completely dismantled or so larded with exceptions that the law is effectively gutted for the benefit of their new client?

So we know who’s on the polluters’ payroll (or is auditioning for the job). Seemingly, anybody with a really important government job in Washington, DC.  But who’s on our payroll?  Who’s actually working for the people who really need the ozone levels lowered?

1 Huffington Post Green – “Oil Industry Gets Help On Undermining Ozone Standards From A Well-Informed Source” (September 9, 2015)

2 Environmental Protection Agency – Ozone (O3) Standards

SAFE, CLEAN WATER IS A HUMAN RIGHT: Why “Thirst Project” is So Important

Posted in Contamination, Groundwater, Pollution, Uncategorized, Water

This is about the importance of clean water to sustain health and life; how we as Americans assume (often mistakenly) that we will always have it; and an extraordinary young man named Seth Maxwell who founded Thirst Project, which is dedicated to the simple but powerful idea that clean water is everyone’s right.

We take many things for granted as Americans.  One of them is clean water.  To drink. To cook. To bathe. To wash things.  Clean water will always be there for us…at least that’s what we think.

But many Americans are learning the hard way that what we take for granted can be taken from us.  For example, the drought in California.  The water shortage it has caused is nothing short of frightening.  Not enough water to grow crops, or put out fires.  Not enough water to pipe to communities.  If the drought is not resolved soon—and no one thinks it will be—then California families will find other places to live.  They will conclude that, without water, it is just not safe to live in California anymore.  And so the state that everyone once wanted to live in will be a state that many will want to leave.  For their own safety.

Another example are the water supplies throughout the United States that today are badly contaminated by years of industrial chemical dumping.  These are millennia-old aquifers flowing underground, which, for as long as there have been humans on the planet, have supplied them life-giving water.  But, over the last 100 years, polluting companies have badly damaged these aquifers by dumping millions of gallons of toxins, and allowing them to seep ever deeper into the ground, until they render the water in the aquifer unusable.  Some of these aquifers can be cleaned up—but it will take decades, typically.  Some aquifers, for all practical purposes, will never be cleaned up.  I have worked as a lawyer for many hundreds of families who were devastated to learn that their aquifer had been taken from them by chemical contamination. They had to find another way to try to get clean water.  It is a horrible betrayal of what they thought it meant to be an American.

Yet, for all the unsettling news about our access to clean water here, we are in dramatically better shape than much of the rest of the world.  Beyond the United States, there are an estimated 1 billion people who do not have access to clean water.  1 billion people.  The number is almost too large to even comprehend. Yet, unlike Americans, many of these 1 billion are not shocked or angry to know that they have no clean water.  Sadly, they never had clean water in the first place.  They grew up with no expectation that clean water would be there for them….let alone a belief that clean water was their right.

And so they drink and cook with and bathe in water that is not fit for humans.  Because it is all that they have.  The consequences are as predictable as they are devastating:  for these people, water is not the source of healing and nourishment, as it was intended to be; instead, it is the reason people get sick and die—especially, children.  Children die by the thousands around the world each day for the shockingly simple reason that there was no clean water—or no water at all—for them to drink.

Thirst Project was founded by a man named Seth Maxwell and 7 of his college friends.  They are young people armed with determination, energy, brains and an unflinching passion which recognizes that people everywhere—not just in America—have the right to clean water.  Their noble and ambitious goal is to “eradicate the global water crisis.”  They do it by mobilizing young people—mostly high school and college-aged—to raise money and awareness, all aimed at building fresh water wells in developing countries and communities. As a result of their efforts, Thirst Project is the world’s leading youth water activism organization. One of their projects has focused on Swaziland, a country whose 1.25 million population is ravaged by a lack of access to clean water, which contributes significantly, for example, to the fact the life expectancy is only 48-years-old, and the mortality rate of children under age five is a shocking 80/1000.

In 2012, Maxwell and his Thirst Project partners embarked on a mission to raise $50 million to supply the entire country with clean water.  The entire country.  Which will make a profound difference and save, literally, tens of thousands of lives. Thirst Project is doing its good work through projects in many other countries as well, such as India, Uganda, Ethiopia, El Salvador, Kenya and Columbia.

I invite you to read and learn more about Maxwell and his Thirst Project and to find a way to join them in their important work.  Because once we say—as we must—that everyone else in the world has the same human right to clean water that Americans do, and once we recognize—as we must—the terrible price that is paid when that right is violated, then we realize that there is work to do…and it’s all of our jobs to do it.

What You Need To Know About Toxic Chemicals in Your Neighborhood – #3

Posted in Barium, Chromium, Cyanide, DCE, Ethylbenzene, Uncategorized

By Shawn Collins and Edward Manzke of The Collins Law Firm, P.C.

Co-authored by Cassidy Carroll and Jacob Exline of The Collins Law Firm, P.C.

Over the last 15 years, many of our environmental contamination cases have started the same way. A family gets the startling news that their water is contaminated with some toxic chemical that they’ve never heard of. Sometimes the news comes in a letter in the mail from a government agency. Sometimes it’s a knock on the door from a government worker. The details are few, but the gist of what the family is told is that some company-perhaps the factory up the street-years ago dumped industrial waste out the back door. Over the years, the chemicals in that waste bled down through the soil, and are now in the groundwater that serves as the family’s supply of water for drinking, preparing food and bathing.

Mom or dad then tries to figure out what to do. They’re scared and angry all at the same time. Their thoughts are: “How could someone do this to us?” “Why weren’t we told before?”

And then there’s this one: “What is this chemical, and what can it do to my family?”

To help families in precisely this unfortunate situation, we’ve compiled short and easy-to-read summaries of the important facts about those chemicals most likely to be found contaminating drinking water. All you need to do is click on the chemical’s name below, and you will find a snapshot of useful information that can help you protect your family. While there are more toxic chemicals out there than we have provided, we are dedicated to updating and adding more toxic chemicals to our list to better help families. If you need any further information, please contact us.

1,1-Dichloroethylene (1,1-DCE)
1,2-Dichloroethylene (1,2-DCE)
Barium
Chromium
Cyanide
Ethylbenzene

 

What You Need To Know About Toxic Chemicals in Your Neighborhood – #2

Posted in Arsenic, Carbon Dioxide, Lead, PCBs, PCE, Toluene, Vinyl Chloride (VC)

By Shawn Collins and Edward Manzke of The Collins Law Firm, P.C.

Co-authored by Cassidy Carroll and Jacob Exline of The Collins Law Firm, P.C.

Over the last 15 years, many of our environmental contamination cases have started the same way. A family gets the startling news that their water is contaminated with some toxic chemical that they’ve never heard of. Sometimes the news comes in a letter in the mail from a government agency. Sometimes it’s a knock on the door from a government worker. The details are few, but the gist of what the family is told is that some company-perhaps the factory up the street-years ago dumped industrial waste out the back door. Over the years, the chemicals in that waste bled down through the soil, and are now in the groundwater that serves as the family’s supply of water for drinking, preparing food and bathing.

Mom or dad then tries to figure out what to do. They’re scared and angry all at the same time. Their thoughts are: “How could someone do this to us?” “Why weren’t we told before?”

And then there’s this one: “What is this chemical, and what can it do to my family?”

To help families in precisely this unfortunate situation, we’ve compiled short and easy-to-read summaries of the important facts about those chemicals most likely to be found contaminating drinking water. All you need to do is click on the chemical’s name below, and you will find a snapshot of useful information that can help you protect your family. While there are more toxic chemicals out there than we have provided, we are dedicated to updating and adding more toxic chemicals to our list to better help families. If you need any further information, please contact us.

Arsenic (Inorganic)
Arsenic (Organic)
Carbon Dioxide
Lead
Perchloroethylene (PCE)
Polychlorinated Biphenyl (PCBs)
Toluene
Vinyl Chloride (VC)

What You Need To Know About Toxic Chemicals in Your Neighborhood – #1

Posted in Benzene, Contamination, Hydrogen Sulfide, Mercury, Methane, MTBE, Pollution, TCE, Uncategorized

By Shawn Collins and Edward Manzke of The Collins Law Firm, P.C.

Co-authored by Cassidy Carroll, Jacob Exline and Gregory Zimmer of The Collins Law Firm, P.C.

Over the last 15 years, many of our environmental contamination cases have started the same way. A family gets the startling news that their water is contaminated with some toxic chemical that they’ve never heard of. Sometimes the news comes in a letter in the mail from a government agency. Sometimes it’s a knock on the door from a government worker. The details are few, but the gist of what the family is told is that some company-perhaps the factory up the street-years ago dumped industrial waste out the back door. Over the years, the chemicals in that waste bled down through the soil, and are now in the groundwater that serves as the family’s supply of water for drinking, preparing food and bathing.

Mom or dad then tries to figure out what to do. They’re scared and angry all at the same time. Their thoughts are: “How could someone do this to us?” “Why weren’t we told before?”

And then there’s this one: “What is this chemical, and what can it do to my family?”

To help families in precisely this unfortunate situation, we’ve compiled short and easy-to-read summaries of the important facts about those chemicals most likely to be found contaminating drinking water. All you need to do is click on the chemical’s name below, and you will find a snapshot of useful information that can help you protect your family. While there are more toxic chemicals out there than we have provided, we are dedicated to updating and adding more toxic chemicals to our list to better help families. If you need any further information, please contact us.

Benzene
Hydrogen Sulfide
Mercury
Methane
Methyl Teriary-Butyl Ether (MTBE)
Trichloroethylene (TCE)

Is US Environmental Decision-Making Morally Bankrupt?

Posted in Court Ruling, Government, Pollution

Co-Authored by Norman B. Berger

A comparison of Pope Francis’ recent encyclical on the environment, Laudato Si’, with our Supreme Court’s recent decision on power plant emissions raises troubling questions regarding the moral core of our environmental decision-making.

The Pope wrote passionately about how it is the poor who bear the brunt of power plants recklessly spewing toxic chemicals into the air:1

  • “Exposure to atmospheric pollutants produces a broad spectrum of health hazards, especially for the poor, and causes millions of premature deaths.  People take sick, for example, from breathing high levels of smoke from fuels used in cooking or heating.”2
  • There is an “intimate relationship between the poor and the fragility of the planet. . .”3

And he spoke of how powerful corporate interests claim for themselves, and then abuse, the earth’s natural resources, all the while denying the basic humanity of most of the earth’s people:

  • “When nature is viewed solely as a source of profit and gain, this has serious consequences for society.  This vision of ‘might is right’ has engendered immense inequality, injustice and acts of violence against the majority of humanity, since resources end up in the hands of the first comer or the most powerful: the winner takes all.”4
  • As a result, “[t]he earth, our home, is beginning to look more and more like an immense pile of filth.”5
  • This behavior refuses to recognize “the immense dignity of each person, ‘who is not just something, but someone. . .”6

With words as beautiful as they are chilling, the Pope exhorted us to make environmental decisions by valuing foremost the lives and health—and fundamental human dignity—of the poor, who are paying the price by the millions for environmental decision-making that considers only, or mostly, the bottom lines of those companies who are doing the polluting.

But then along comes the majority of justices of the US Supreme Court in the recent case of Michigan vs. EPA, ruling as if they were trapped in another century governed by Charles Dickens-style industrialists.  I blogged about this decision in Life-Saving Regulation of Toxic Power Plant Emissions Declared Invalid By US Supreme Court.

In that decision, the majority invalidated an 18-years-in-the-making EPA regulation which would have:7

  • Sharply reduced the toxic emissions from coal burning power plants;
  • Saved 11,000 lives every year;
  • Reduced illness from power plant emissions by the tens of thousands every year; and
  • Producing benefits greater than costs by up to $80 million every year.

(And this is to say nothing of the severe climate change caused by power plant and other fossil fuel emissions which, alone, are threatening the lives and security of millions around the world.)7

The lives and health spared by EPA’s regulation would have been mostly those of the poor—including poor children—who live in precisely the kind of financially disadvantaged neighborhoods where homes and yards are regularly blanketed with toxic soot.

In its reasoning, the majority barely even noticed the fact that EPA’s regulation would have saved lives and health, or that, in the 10+ years it worked to find the most cost-effective regulation, EPA considered numerous times the cost of the power plants’ compliance with the regulation.  Instead, the majority fastened its gaze only on the fact that, in the earliest stage of the process, EPA did not consider the cost.  In other words, according to the majority, EPA’s consideration of compliance costs at stages 2-10 of its process was irrelevant; but its failure to consider cost of compliance at stage 1—when there was not even a regulation on the table whose costs could be calculated—was fatal.

What especially raises the troubling moral questions in the majority’s opinion is the term it used (and EPA used, it should be noted) to refer to the lives and health that would have been spared by the regulation:

“Ancillary benefits”

Have we really arrived as a society at the place where the spokespeople for our most powerful institutions now casually refer to not killing and injuring our own citizens as merely “ancillary” to corporate balance sheets?

What do we say to the mother raising children in a poor community where the air in her children’s bedrooms, schools and playgrounds is heavy with chemicals from the power plant’s smokestack across town?

What do we tell her when she asks: Why are the most powerful in the country referring to the lives of my children as “ancillary?  Why, after EPA reported to Congress in 1997 that power plant emissions would harm my children for life, did it take 18 years to get the regulation through the court system?  Where is the urgency that honors the lives and health of the people in my family and of my neighbors?

The truthful answers to these questions are ugly.  But the beginning of our finding better, moral answers may be found, once again, in the writing of Pope Francis, who said:

“…we have to realize that a true ecological approach always becomes a social approach; it must integrate questions of justice in debates on the environment, so as to hear both the cry of the earth, and the cry of the poor.”8

I am not suggesting that our Supreme Court begin taking direction from a religious leader.  Our history and Constitution tell us that we don’t do that here. But just because Pope Francis is a religious leader does not mean that he is wrong, or that his voice cannot be the catalyst for showing us that we have fallen so far short of who we really should be.

And it should not take religious guidance for us to understand that our willingness to hear the “cry of the earth and the cry of the poor” occupies much higher moral ground than our insistence on hearing the cries of those who claim our resources as their own, profit from their use, and leave our planet and people badly damaged in their wake.

1 Pope Francis – “Laudato Si'” – Papal Encyclical (June 18, 2015)

2 Pope Francis – “Laudato Si'” – Papal Encyclical at Par. 20 (June 18, 2015)

3 Pope Francis – “Laudato Si'” – Papal Encyclical at Par. 16 (June 18, 2015)

4 Pope Francis – “Laudato Si'” – Papal Encyclical at Par. 82 (June 18, 2015)

5 Pope Francis – “Laudato Si'” – Papal Encyclical at Par. 21 (June 18, 2015)

6 Pope Francis – “Laudato Si'” – Papal Encyclical at Par. 65 (June 18, 2015)

7 Pollution Law Watch – “Life-Saving Regulation of Toxic Power Plant Emissions Declared Invalid By US Supreme Court” (July 8, 2015)

8 Pope Francis – “Laudato Si'” – Papal Encyclical at Par. 49 (June 18, 2015)

LIFE-SAVING REGULATION OF TOXIC POWER PLANT EMISSIONS DECLARED INVALID BY US SUPREME COURT

Posted in Court Ruling, Government, Mercury, Pollution

Co-Authored by Norman B. Berger

If a new environmental regulation requiring power plants to reduce toxic emissions would prevent 11,000 premature deaths every year; prevent many thousands more illnesses every year; and produce benefits that outweigh the costs by as much as $80 billion every year, would you say that’s enough reason to have the regulation?

Of course you would.  But a majority of the US Supreme Court recently said that all of that wasn’t enough. Or, more precisely, that it didn’t matter. And so it declared invalid the life-saving regulation. The Court’s decision is just the latest sad example of how this country’s institutions will protect the “right” of powerful business interests to pollute our air and water, even though their pollution is badly injuring—and even shortening the lives of—American citizens. (And this is to say nothing about the power plants’ role in greenhouse gas emissions which are choking our planet and threatening to permanently displace millions this century).

We worry a lot about the rights of polluters to not have to bear the cost of polluting less, but not nearly enough about the rights of our citizens to not have bear the devastating costs of the pollution.

On June 29, the Supreme Court issued its decision in the case of Michigan v. Environmental Protection Agency.1

In that case, the record showed that, since the late 1990’s, the US EPA has studied the emissions—predominantly mercury—from coal-burning power plants, and ways to significantly reduce them. Beginning in 1997, EPA’s Mercury Report to Congress found coal-burning power plants to be the “largest [non-natural] source of mercury emissions” and found mercury to be quite dangerous to humans.2  For example, EPA determined that children of mothers exposed to high doses of mercury during pregnancy “‘have exhibited a variety of developmental neurological abnormalities,’ including delayed walking and talking, altered muscles, and cerebral palsy.”3

EPA also considered—at multiple times during the last 10 years, and in multiple ways—the cost to the power plants of requiring them to emit significantly less mercury to the environment.4

Then, at the end of this 10-year study period:

EPA conducted a formal cost-benefit study which found that the quantifiable benefits of its regulation would exceed the costs up to nine times over—by as much as $80 billion each year. Those benefits include as many as 11,000 fewer premature deaths annually, along with a far greater number of avoided illnesses.5

But none of it mattered. The Supreme Court, in a 5-4 decision, ruled that this was all irrelevant because EPA had not considered, at the very first stage of the process, how much it would cost for the power plants to comply with the regulation.  Writing for the majority, Justice Scalia said that EPA “must consider cost—including, most importantly, cost of compliance—before deciding whether regulation is “appropriate and necessary”.6 (emphasis added) Therefore, any later consideration by EPA of compliance cost—even if it considered such cost many, many times over a decade, which EPA did—and any determination that the lives and health of many citizens would be spared by the regulation, simply do not matter.  According to Justice Scalia and the majority, EPA did not even have the power to be looking into those things, since it did not take compliance cost into consideration on day one.

The Supreme Court majority is wrong, and plainly so. The legal requirement that EPA first find regulation to be “appropriate and necessary” before it begins the regulatory process does not say that “compliance costs” must be part of the “appropriate and necessary” determination.  It would have been easy enough for Congress to have said that, but it didn’t. EPA’s conclusion at the start of the 10+ year-long regulatory process—i.e., that the regulation of mercury emissions will save lives and that it is technologically feasible to save them—is more than enough to empower EPA to take the next step. And that step is what took 10 years: figuring out what the regulatory options are for saving lives, and what their various costs and benefits are.  If, during that portion of its work, EPA determines that the costs of the regulation outweigh its benefits, then there will be no regulation.

EPA’s finding that regulation of coal-burning power plants is “appropriate and necessary” does not mean that EPA has already settled on a specific regulation, and is telling the power plants that they just have to live with it. The “appropriate and necessary” finding is the beginning of the process, not the end.  It simply means that EPA can get started on the laborious process of figuring out what regulation will be most cost-effective, which is what happened here.

The majority is also wrong because it forces EPA to do the impossible, i.e., to determine the cost of regulating before it even knows what the specific regulation will be. Will the final regulation reduce emissions by 20%, or 90%? Will the final regulation reduce emissions for all power plants, just the biggest, or just the worst polluters? How can EPA “consider the cost” of regulating mercury emissions before it even knows how the final regulation will address these questions? To say, as the Scalia majority does, that EPA has no power to consider specific regulations without first identifying their compliance cost—while the majority well knows that EPA cannot in any meaningful way identify compliance cost without know what the specific regulation will be—puts EPA in a Catch-22 that renders it impotent.

And maybe that is precisely what the pro-business majority intended.

But the worst and saddest part is what those 5 justices were really doing when they said that EPA’s consideration of compliance cost dozens of times over those 10+ years is not enough, since EPA didn’t consider them on day one. The majority was declaring that the fact—and it is a fact—that mercury and other toxic emissions from power plants are killing and injuring tens of thousands of Americans every year is not a significant enough “cost” to justify trying to stop this horrible danger.

To these justices, it seems, the business cost to power plants of regulating their lethal polluting trumps the cost to all of those whose lives are jeopardized because there is no regulation.

1 US Supreme Court – Michigan v. Environmental Protection Agency (June 29, 2015)

2 US Supreme Court – Michigan v. Environmental Protection Agency – Justice Kagan’s Dissent at 5 (June 29, 2015)

3 US Supreme Court – Michigan v. Environmental Protection Agency – Justice Kagan’s Dissent at 5-6 (June 29, 2015)

4 US Supreme Court – Michigan v. Environmental Protection Agency – Justice Kagan’s Dissent at 1-7 (June 29, 2015)

5 US Supreme Court – Michigan v. Environmental Protection Agency – Justice Kagan’s Dissent at 2 (June 29, 2015)

6 US Supreme Court – Michigan v. Environmental Protection Agency – Opinion of the Court at 14 – Delivered by Justice Scalia (June 29, 2015)