Myths of Coal's Clean Future: The Story of Methylmercury
By Jonathan Skinner
INTRODUCTION
Four years ago, the U.S. Senate Committee on Finance's Subcommittee on Energy, Natural Resources, and Infrastructure convened a hearing entitled “Coal: A Clean Future.”1 Senator Jeff Bingaman of New Mexico prepared the opening statement and addressed a small group of senators and private sector representatives. The discussion operated on the assumption that advanced coal technologies had solved the acid rain crisis of the 1970s and would be the solution to clean energy initiatives addressing future regulation. But while technological developments were successful in decreasing the emissions output of SO2 (sulfur dioxide) and NOx(nitrogen oxide), the developments were largely a response to regulatory incentives and involvement and were not a consequence of industry initiative.
From extraction to refinement to use, today's coal industry operates largely between the reach of major U.S. environmental acts and regulations. And even as the industry attempts to green its public image, media scrutiny exposes the considerable harms associated with coal power.2 These attempts to re-brand the industry should not absolve it from existing technological shortcomings and immunize it from regulatory challenges. Coal's clean future cannot be created on its own initiative.
In particular, mercury presents unique problems for both the U.S. Environmental Protection Agency (“EPA”) and communities exposed to mercury emissions. Inorganic mercury is a heavy metal created by the combustion of coal. Unlike most gaseous pollutants, mercury returns to earth and may be deposited on adjacent waterbodies, exposing fish and human populations to mercury's dangerous effects. This creates challenges for the EPA because: (1) ambient inorganic mercury emitted into the air has been largely exempted from significant regulation under the Clean Air Act because the greatest impact to human, animal and plant life and health is not from ambient inorganic mercury emitted into the air but from converted organic methylmercury in water; and (2) mercury is difficult to regulate within the Clean Water Act because deposition of air emissions are not typically considered “point source” discharges. Furthermore, as a non-point source discharge, the regulation of mercury is delegated to state authority and land use laws. Thus, mercury can fall between federal regulatory gaps if a state chooses to let it.
This paper addresses the regulatory challenges faced by environmental groups seeking to prevent the accumulation of mercury in waterways. First, it lays out the relationship between coal and mercury pollution and briefly summarizes the environmental and health impacts of mercury. Second, it identifies the primary statutory regimes available to the EPA and citizen groups, and explains the regulatory gap created by delisting electric-utilities from hazardous air pollutant regulation under the Clean Air Act. Third, the article explores the challenges mercury poses to the Clean Water Act and argues that smokestacks should be considered point sources for the purposes of the Clean Water Act, triggering the permit requirements of the National Pollutant Discharge Elimination System (“NPDES”). If smokestacks are not characterized as point sources, states must nevertheless establish a Total Maximum Daily Load (“TMDL”) for mercury impaired waterways, allowing agencies to target and regulate non-point sources of mercury pollution. Fourth, the article argues that the Anti-degradation Clause of the Clean Water Act may be used as a statutory measure to prevent the issuance of a permit under the Clean Air Act. And finally, if courts refuse to allow agencies to regulate methylmercury under the Clean Water Act, the National Environmental Policy Act (“NEPA”) is an appropriate channel to bridge the regulatory gap between the Clean Water Act and the Clean Air Act through adequate scoping in environmental review, which would require environmental department air divisions to consider the impact of air emissions on aquatic ecosystems.
Four years ago, the U.S. Senate Committee on Finance's Subcommittee on Energy, Natural Resources, and Infrastructure convened a hearing entitled “Coal: A Clean Future.”1 Senator Jeff Bingaman of New Mexico prepared the opening statement and addressed a small group of senators and private sector representatives. The discussion operated on the assumption that advanced coal technologies had solved the acid rain crisis of the 1970s and would be the solution to clean energy initiatives addressing future regulation. But while technological developments were successful in decreasing the emissions output of SO2 (sulfur dioxide) and NOx(nitrogen oxide), the developments were largely a response to regulatory incentives and involvement and were not a consequence of industry initiative.
From extraction to refinement to use, today's coal industry operates largely between the reach of major U.S. environmental acts and regulations. And even as the industry attempts to green its public image, media scrutiny exposes the considerable harms associated with coal power.2 These attempts to re-brand the industry should not absolve it from existing technological shortcomings and immunize it from regulatory challenges. Coal's clean future cannot be created on its own initiative.
In particular, mercury presents unique problems for both the U.S. Environmental Protection Agency (“EPA”) and communities exposed to mercury emissions. Inorganic mercury is a heavy metal created by the combustion of coal. Unlike most gaseous pollutants, mercury returns to earth and may be deposited on adjacent waterbodies, exposing fish and human populations to mercury's dangerous effects. This creates challenges for the EPA because: (1) ambient inorganic mercury emitted into the air has been largely exempted from significant regulation under the Clean Air Act because the greatest impact to human, animal and plant life and health is not from ambient inorganic mercury emitted into the air but from converted organic methylmercury in water; and (2) mercury is difficult to regulate within the Clean Water Act because deposition of air emissions are not typically considered “point source” discharges. Furthermore, as a non-point source discharge, the regulation of mercury is delegated to state authority and land use laws. Thus, mercury can fall between federal regulatory gaps if a state chooses to let it.
This paper addresses the regulatory challenges faced by environmental groups seeking to prevent the accumulation of mercury in waterways. First, it lays out the relationship between coal and mercury pollution and briefly summarizes the environmental and health impacts of mercury. Second, it identifies the primary statutory regimes available to the EPA and citizen groups, and explains the regulatory gap created by delisting electric-utilities from hazardous air pollutant regulation under the Clean Air Act. Third, the article explores the challenges mercury poses to the Clean Water Act and argues that smokestacks should be considered point sources for the purposes of the Clean Water Act, triggering the permit requirements of the National Pollutant Discharge Elimination System (“NPDES”). If smokestacks are not characterized as point sources, states must nevertheless establish a Total Maximum Daily Load (“TMDL”) for mercury impaired waterways, allowing agencies to target and regulate non-point sources of mercury pollution. Fourth, the article argues that the Anti-degradation Clause of the Clean Water Act may be used as a statutory measure to prevent the issuance of a permit under the Clean Air Act. And finally, if courts refuse to allow agencies to regulate methylmercury under the Clean Water Act, the National Environmental Policy Act (“NEPA”) is an appropriate channel to bridge the regulatory gap between the Clean Water Act and the Clean Air Act through adequate scoping in environmental review, which would require environmental department air divisions to consider the impact of air emissions on aquatic ecosystems.