ANNOUNCER: From our studios in New York, David Brancaccio.
BRANCACCIO: Welcome to NOW. There's plenty in the news we're going to talk about tonight. But first we want to talk about what's literally a kitchen table issue: the food we eat.
This week, the California Attorney General filed suit against the country's three biggest producers of canned tuna saying California law requires them to warn consumers that their cans of albacore and light tuna contain mercury.
Do we need to tell you that mercury is bad for you?
Now the government has been debating for over a decade what to do about the mercury that spews from coal-fired power plants and ends up in our lakes, rivers, and oceans and ultimately in our fish.
But coal does have its benefits. We dig it out of the ground right here in America and it helps reduce our dependency on foreign oil. But with coal comes mercury.
So tonight, as the Bush administration prepares to adopt new national mercury regulations, we look at whether politics will trump public health. Our report was produced by Brenda Breslauer.
BRANCACCIO: Ed Mongin is one serious fisherman. Now that he's retired, he gets out on these Wisconsin lakes nearly every day.
MONGIN: Everybody goes out weekends, take the kids out. Like what we're doing here. This is kind of a way of life for a lot of people.
BRANCACCIO: What does fishing do for you?
MONGIN: You got me. Just love it. Can't tell you what it does for me. Just love it. Like my wife said that you go out there and you don't pay attention to anything else. So I guess so.
BRANCACCIO: Mongin likes to eat what he catches. Fish, after all, is one of the things the diet books say won't kill you.
MONGIN: I guess my wife and I always enjoyed eating a lot of fish and keeping our weight down and stuff, because there's a lot of protein but not much fat. They're supposed to be good and healthy for you. That's what I thought.
BRANCACCIO: But these days, the fishing hasn't had the same magic for Mongin and his fellow anglers. The problem is mercury. You know, quicksilver, the toxic metal that used to be in thermometers? It comes out here. Coal-fired power plants put out 40% of man-made mercury emissions in the U.S. and mercury doesn't just blow away: what goes up comes down. It ends up here that's a tasty fish. The bigger the fish and the higher up the food chain, the more mercury it can have.
The problem is so bad that the federal government and 43 states have warnings about eating certain kinds of fish. Here in Wisconsin, every one of the states' 15,000 lakes and 57,000 miles of rivers is covered by a fish consumption advisory. A serious problem for a state where the Friday night fish fry is a tradition and recreational fishing is a billion dollar industry.
Just buying a fish license in Wisconsin is a bit of a bummer.
TACKLE SHOP OWNER: Health advisory for eating fish and it'll tell you the ages and what lakes and rivers and streams, how many fish you should eat...
BRANCACCIO:Mercury emissions from power plants have never been regulated by the federal government. It took a 1992 lawsuit by the Natural Resources Defense Council and more than a decade for the EPA to finally issue a proposed mercury regulation… in January of this year. Jeffrey Holmstead is the assistant administrator for air and radiation at the EPA.
HOLMSTEAD: We've proposed and plan to finalize this year, a rule that will get by far, the greatest emission reduction from power plants that's ever been achieved in this country or anywhere else in the world.
BRANCACCIO: Sounds like progress but it triggered an outpouring of protest. By law, once a government regulation is proposed, the public has the right to weigh in. It's known as the public comment period. And, in the case of mercury, the comments have flooded the agency. 235 members of Congress, hunters, fisherman and anglers, Indian tribes, and the National Parent Teachers Association, the PTA, have all urged the EPA to adopt swifter and more stringent controls on emissions. Former EPA scientist Martha Keating, now at the non-profit group Clear the Air, has been combing through the public file.
KEATING: We have had over 500,000 public comments from American citizens submitted on this rule saying, "Don't do this rule this way."
BRANCACCIO: They're worried about the mercury.
KEATING: They're worried about the mercury. They're worried about their children basically.
BRANCACCIO: Even the March of Dimes, which hasn't filed comments with the EPA in the 20 years since the lead in gasoline issue, has written in to urge the EPA to withdraw its current proposal and replace it with a more stringent one. It quoted a recent EPA analysis that found and here's the showstopper that 630,000 babies each year may be exposed to unsafe levels of mercury.
HOWSE: The most severe effects are severe mental retardation, cerebral palsy, deafness, blindness. These are untenable risks as far as the March of Dimes is concerned.
BRANCACCIO: Dr. Jennifer Howse is president of the March of Dimes which has been dedicated to protecting the health of babies for more than half a century.
HOWSE: Mercury has the capacity to do developmental, neurological damage to the developing brain of the fetus. This is very serious.
BRANCACCIO: It's also serious for wildlife, according to the Maine Audubon Society, which submitted comments citing concern about loons like these. Recent studies show that loons produced 40% fewer offspring after eating fish from mercury contaminated lakes.
What's more, attorneys general from 10 states have written to the EPA, warning that there's no way its proposal would survive in a court of law.
The thing is, for a known neurotoxin like mercury, the Clean Air Act has a specific set of rules: emissions need to be reduced at each and every power plant by the best available technology. But the EPA's preferred plan lumps mercury in with plain old pollutants where more lenient rules apply.
HOLMSTEAD: Now, people have raised an issue about whether it's appropriate to have cap-and-trade for a toxic pollutant like mercury. And we've done a lot of analysis. We believe it is.
BRANCACCIO: Jeffrey Holmstead says the EPA's preferred plan is more cost effective and efficient. It's called cap-and-trade.
Instead of forcing each and every coal-fired plant to cut mercury emissions, cap-and-trade lets power plants that do a good job controlling mercury sell pollution credits to plants that do a bad job of it, even though it's a toxic element and not run-of-the-mill pollution.
HOLMSTEAD: The Clean Air Act provides us with different approaches that we can use. And we've had a pretty extensive discussion among our lawyers and in my own office and we're quite confident that we have a choice.
BRANCACCIO: And under this choice, mercury emissions might be cut by 70 percent by 2018 at the earliest. That's about the time today's preschoolers go off to college, a ten year delay over the 2008 deadline set by the Clean Air Act. But why wait? Many in the industry claim the technology will not be ready much sooner.
HOLMSTEAD: Right now, there's no any power plant in the country that actually has technology to control its mercury emissions. There's no power plant out there today that has this technology that people are talking about.
BRANCACCIO: What do the states seem to know that maybe the EPA hasn't fully embraced? I know that Massachusetts and Connecticut and New Jersey are permitting plants that reduce mercury by 85 to 90 percent by just 2010. That's a much more aggressive time frame than your proposed rule.
HOLMSTEAD: That it is, but it's a very different situation. Massachusetts, I believe, has nine units that are burning essentially the same type of coal. And we know there is a technology that can do that today. But from a national perspective, we're not dealing with nine units. We're dealing with 1,300 units. And so, our solution needs to be something that actually can be implemented by 1,300 units over the same time period.
BRANCACCIO: But listen to PSEG power, which owns coal-fired plants in three states, before the Connecticut legislature last year as it signed a historic agreement that can achieve up to 90% reductions in emissions by 2008.
BROWNSTEIN: We believe that the levels we are advocating today, coupled with the flexibility mechanisms that are necessary to address existing uncertainties in the performance of comercially available control technologies are fundamentally achievable at any power plant in the United States.
BRANCACCIO: So who's right? The EPA or a handful of individual states and power companies like PSEG power?
HOLMSTEAD: Again, I'm not aware of that statement. But it's inconsistent with what we hear from our own experts and from many other companies.
BRANCACCIO: Speaking of expert advisors, the EPA has stopped taking advice from a bunch of them. Martha Keating had been appointed to the official EPA advisory panel to work on the regulation back in 2001. Until last year, when the panel abruptly got the message that its input was no longer needed.
KEATING: And about two days beforehand, just got an email that said, "Sorry, the meetings' been cancelled. Thanks. We'll be back in touch when we reschedule." And haven't heard from them since.
BRANCACCIO: So Keating wondered if the EPA wasn't listening to its own expert advisors, who were they listening to? She began to search the public records.
KEATING: I began looking to see what had been submitted to the record. And what EPA was using to base its decision on.
I guess there were certain phrases that jumped out at me and I thought, "Well, wait a minute. You know, I really think I've seen that before." And went to my files and started to flip through the documents that had been provided to EPA by Latham & Watkins, and started to just match up sections of the document.
BRANCACCIO: Latham & Watkins is a law firm that participated in the EPA advisory group and represents a number of the power companies that will wrestle with new mercury rules. And when Keating read through the docket, she soon spotted that a number of the firm's arguments had made it into the EPA proposals. In some cases, almost word for word.
KEATING: At first, I was just so surprised. I mean, first, it was the concept, "Oh, yeah. You know I'm familiar with this." And then it was, "My gosh! These really are word-for-word." And I'm, you know, sending emails to my colleagues saying, "Are you reading this? Does it sound familiar?"
But then piecing together the exact wording really was quite a surprise. In many cases it provides the rationale, the basis for decisions that EPA made. And it was wording that was handed to them.
BRANCACCIO: Handed to them by an aggressive advocate for industry. In a September 2003 position paper presented to the EPA, Latham & Watkins argues that "a system-wide or pooled performance standard" cap-and-trade would be legal under a novel interpretation of the Clean Air Act.
Language that is pretty darn close to that ended up in the federal register where the EPA's proposals were published. Its just one of more than a dozen examples that Keating uncovered.
BRANCACCIO: Did that surprise you?
KEATING: Yes, it did. Yes, it did.
BRANCACCIO: Keating wasn't the only one who said they had that reaction. Jeffrey Holmstead, the man in charge of the EPA's proposed mercury rule, claimed he was too.
HOLMSTEAD: I was surprised. Ordinarily in a case like this, we would say, "You know, this was a suggestion that came from industry. And we're putting it out for public comment." In this case, it wasn't drafted by the EPA staff. It came in during the interagency process. And we had no way of knowing that it should've been attributed to a specific industry.
BRANCACCIO: It's just that I think people would expect that industry would be a robust participant of any rule-making that involves their industry. Just, you wouldn't expect industry to be seen as writing the language.
HOLMSTEAD: No. I think that's correct. And it's something that I know both the Administrator and I were concerned about.
BRANCACCIO: In what may be just coincidence, it turns out that before Holmstead came to the EPA to run the air office, he worked as an attorney at Latham & Watkins, the same firm that wrote that language adopted by the EPA.
BRANCACCIO: You used to work at Latham & Watkins?
HOLMSTEAD: Yes. No, no. I absolutely… I and one of my close colleagues here were both at Latham & Watkins. But Latham & Watkins represents many industries. And this language didn't come in through me or through my colleague. It came in actually without our even knowing about it.
BRANCACCIO: So, I shouldn't worry about a conflict?
HOLMSTEAD: No. There's no conflict. It's certainly something people have tried to make hay out of. And I think that's unfortunate. And that's why I say, "Gee, I wish that someone had told me that this was an issue." And we would've said, "Here's an idea that's come in from an industry, and we ask for comment on it."
KEATING: I think it's a pretty dramatic illustration of the influence that certain industries can have in this process. That they can reach the high levels of these administrations and have their positions not only known, not only meet with them, but to have their positions, in fact, adopted, just the way they would like them to be.
BRANCACCIO: Yeah, by the way, did any of your language ever show in the EPA rulemaking?
KEATING: No. Not a word. Not a word, I'm sorry to say. No.
BRANCACCIO: After uncovering the Latham & Watkins language, Keating continued her journey through the public record. And she soon found something else.
KEATING: On this page, again, the word "confirmed" where it says, "Mercury poses confirmed hazards to public health." The word "confirmed" is circled, and the notation, "Get rid of," is noted.
BRANCACCIO: The White House Office of Management and Budget was actually editing the EPA's language on the health effects of mercury.
KEATING: This page has to do with health effects. And talks about pregnant women and children. And the effects on the developing fetus. I'll read it to you. It starts as, "In pregnant women, methylmercury can be passed on to the developing fetus. And at sufficient exposure, may lead to a number or neurological disorders in children." And here's the line that's deleted, "These disorders can lead to learning disabilities, delayed development, and in severe cases, such as acute poisoning, cerebral palsy."
BRANCACCIO: Crossed right out.
KEATING: Crossed out.
BRANCACCIO: By the White House Office of Management and Budget?
KEATING: That's correct.
BRANCACCIO: Does the White House's Office of Management and Budget have the authority to, I don't know, downplay the health effects of mercury like this?
HOLMSTEAD: I don't think there was… first of all, this is the typical process that we and every agency always follows. And it's not just the Office of Management and Budget. But it's all of the federal agencies who are involved in this. And my impression is that there were people who thought that our original draft overstated the certainty with which we knew some of these things. So, I was not directly involved in many of those conversations.
But scientists from all the agencies were. And so, that's a pretty common practice, is to make sure that what we're saying is really fully defensible.
BRANCACCIO: The line that got crossed out was, "These disorders can lead to learning disabilities, delayed development and in severe cases such as acute poisoning, cerebral palsy." You're personally okay with that being taken out?
HOLMSTEAD: Well, I honestly don't know what the studies are on cerebral palsy. It's not been a big issue. And so I don't know in that case.
I can tell you that the major concern that we have is developmental effects in children who are exposed when they were in utero. And so as to, I guess. what I can say is our scientists must be okay with that. Or they wouldn't have agreed to take it out of the package.
BRANCACCIO: But enough questions have now been raised about the proposed rules and how they were crafted that the EPA's inspector general has launched an investigation. For many, however, the core concern here is not procedure. The concern is the health of the nation's children.
BRANCACCIO: The worry is when you look at, for instance, the EPA has its own advisory panel on children's health. And they say that the EPA proposed rule does not go as far as is feasible to reduce mercury emission from power plants and thereby does not sufficiently protect our nation's children. Again, the 630,000 babies at risk to mercury, how do you reconcile these experts' on children's health view with, ultimately, the direction you're pushing?
HOLMSTEAD: Well, we share their view. This, in and of itself, is not going to solve the problem. This is a piece of a much bigger strategy. And so our job, faced with a specific industry, which is a significant emitter, is to control them as quickly as we can, as efficiently as we can. And that's what we're doing. But I think we would agree with them that this doesn't completely solve the problem of children that are exposed to elevated levels of mercury.
BRANCACCIO: The utility industry says even if its reductions reached 90%, there are other sources of mercury out there. Pregnant women still wouldn't be able to eat all the fish they want. But power plants are a big place to start, say people like Ed Mongin.
MONGIN: Whatever is going on with those smoke stacks, I think they should just do what they can to stop it.
BRANCACCIO: After reading a READER'S DIGEST article about mercury last summer, Mongin asked his doctor at the VA to test his mercury level, given all the fish he eats.
MONGIN: I thought, "Well, nobody I know I got mercury around here because it's…" Like you see, we've got the books that tell you you got it. I just thought, "Well, I think I'll just ask my doctor to do a mercury check on me for the heck of it because if anybody's got it I got it." Because nobody is eating more fish than I am and I know that so…
BRANCACCIO: The tests showed that his blood level was more than seven times the EPA safe limit. Doctors want tests to come back at less than 6. Mongin got a 44.
MONGIN: And he says, "You have mercury way too high. Way too high." I said, "Well, I suspected it might have been."
BRANCACCIO: When Mongin quit eating fish for three months his level went down. But he says he can't help himself and he now cheats a bit. He's a catch-and-eat man, after all. He worries about his pregnant daughter-in-law and grandchildren who also fish on these Wisconsin lakes.
MONGIN: If we can do anything about it, let's do it. If we can't do it for this generation, let's start doing it for the ones after us.
This is a way of life that could be lost forever, the eating part could be gone. Generations after us are not gonna be able to do what we're doing.
I've got a message to Bush. I support you. I agree with you on most subjects. This one I'm 100 against. I think we should do whatever we can to get the environment cleaned up as fast as we can. If it costs a few bucks, so be it. That's my message. Hope he gets it. Make sure he gets it.
BRANCACCIO: You can send your message to the administration. The public comment period on those proposed EPA mercury regulations ends this Tuesday. To find out how to contribute, go to our Web site at pbs.org.