Alchemical Rulemaking and Ideological Framing: Lessons from the 40-Year Battle to Regulate Mercury Emissions from Electric Power Plants

Abstract

Environmental mercury has long been linked to adverse health impacts on human populations. Globally ubiquitous at ambient levels in air and water, it can reach potentially unsafe levels in fish as it magnifies and accumulates through aquatic and marine food webs. Vulnerable communities and people of color are particularly at risk from fish-borne mercury. Despite the fact that coal-fired electric generating units have been recognized as major sources of environmental mercury since the 1970’s, and that the Environmental Protection Agency discussed possible future regulations of mercury emissions from such plants in 1975, it was not until 2014 that the Obama administration promulgated the Mercury and Air Toxics Rule regulating such emissions – and not until 2016 that the rule appeared to be firmly in place after the Environmental Protection Agency’s revised findings promulgated in response to the Supreme Court’s remand in Michigan v. EPA.

This article examines the more than 40-year-long debate over mercury emissions regulations from electric generating utilities, situating that debate in the context of both scientific uncertainty and the larger legal and ideological conflicts that have grown to define environmental policy discourse in the United States since the 1970’s. It focuses on the discursive practices and tactics used in different policymaking processes to frame and reframe law and science to serve ideological goals that often seem to conflict with the plain language of the Clean Air Act itself. While offering a historically comprehensive account, it pays special attention to contrasting the development of the Bush-era Clean Air Mercury Rule in 2005 with the far different Obama-era Mercury and Air Toxics Rule, showing how the same statutory language can lead to significantly different regulatory regimes depending on the ideological motivations of those in power, and environmental justice can frequently be abrogated in favor of commercial interests. Considering the new Presidential administration has called for significant rollbacks in environmental protection laws, this article may provide insight into what happens to environmental statutory interpretation and varying strategic interpretations of scientific uncertainty. Just as ancient alchemists saw mercury as an element of change and flux, ideological actors in the modern federal rulemaking process have seen the rules governing its emission as subject to its own transmutation, able to flow and transform into different manifestations as ideological actors gain control of the regulatory crucible.

Keywords: Mercury, Clean Air Act, Hazardous Air Pollutants

JEL Classification: K23, K32