Mercury, Risk, and Justice

46 Pages Posted: 4 Aug 2007  

Catherine O'Neill

Seattle University School of Law

Abstract

In December 2003, the U.S. Environmental Protection Agency (EPA) unveiled its long-awaited proposal for regulating mercury emissions from coal-fired utilities, which it later dubbed the "Clean Air Mercury Rule." Methylmercury is a potent neurotoxin, leading to irreversible neurological damage; humans are exposed primarily through consuming contaminated fish. The EPA rule relies on a creative interpretation of the Clean Air Act to enlist a cap-and-trade approach for mercury emissions from these sources. The rule sets forth a cap in two phases, ultimately targeting a 70% reduction in mercury emissions by 2018. EPA's rule, however, raises a host of environmental justice issues. First, emissions reductions are more modest and significantly delayed when compared to reductions expected under section 112 of the Clean Air Act. Second, the cap-and-trade approach raises the specter of "hot spots" - local or regional instances of relatively high emissions and, ultimately, exposure - as a result of emissions trading. Third, the EPA's proposal relies heavily on risk avoidance in the form of fish consumption advisories, which ask people to reduce or eliminate fish from their diets in order to avoid exposure to methylmercury. Each of these three features of the rule disproportionately burdens fishing tribes and their members, as well as some communities of color and low-income communities that depend on fish. This article discusses these environmental justice issues, highlighting the particular case of the Ojibwe and other fishing peoples in the Great Lakes.

Keywords: risk, risk assessment, risk avoidance, emissions trading, cap-and-trade, market-based regulatory strategies, hot sopots, mercury, environmental justice, treaties, tribes, Native peoples, Clean Air Act, MACT, neurotoxin, neurodevelopment, exposure assessment, RfD, Clean Air Mercury Rule,

JEL Classification: K32

Suggested Citation

O'Neill, Catherine, Mercury, Risk, and Justice. Environmental Law Reporter, Vol. 34, No. 12, 2004. Available at SSRN: https://ssrn.com/abstract=1004769

Catherine O'Neill (Contact Author)

Seattle University School of Law ( email )

901 12th Avenue
Seattle, WA n/a 98122
United States
206-398-4030 (Phone)
206-398-4036 (Fax)

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