Risky regulations

Imagine you've decided to take your favorite 11-year-old boy fishing out on a Michigan lake. On his first cast, he hooks a largemouth bass, a 4-pounder you have to help him reel in. It'll go perfect on the grill. One problem: Michigan has a statewide mercury advisory for bass. Mercury is a toxicant that affects the nervous system. Do you eat the fish?

Michigan suggests you make no more than one meal a week from any bass you've caught. For an 11-year-old, only one meal a month is recommended. If you follow that cautious advice, you can grill today, but you'll be eating hot dogs tomorrow.

Whether you throw the fish back-or eat it for lunch and dinner-you're making a risk decision. As a society we leave some risks to individual choice or the marketplace, and minimize others through regulation. On Dec. 16 the U.S. Environmental Protection Agency (EPA) finalized the first nationwide limits on the emission of mercury and other toxic air pollution from power plants. As the debate surrounding the rules proves, Americans disagree about how much risk to regulate.

The new EPA rules are expected to eliminate 91 percent of mercury from the exhaust of coal- and oil-fired power plants in the United States, and reduce the emission of nickel, chromium, arsenic, and certain acid gases. Mercury that enters the atmosphere can travel for thousands of miles before falling to the ground or into bodies of water, where it accumulates in fish. Humans who eat those fish absorb the mercury, and some studies have shown cognitive impairments in children whose mothers ate seafood-rich diets during their pregnancies. Advocates of regulation say reducing mercury from power plants will reduce a health risk to children.

The power sector will have to spend $11 billion a year by 2016 to comply with the rules, according to EPA calculations. Electric companies have decided to shut down some of their coal-fired plants and install powerful scrubbing technology on others. Consumer electricity prices could rise 12 percent, and perhaps more in some regions.

Mitch Hescox, president of the Evangelical Environmental Network (EEN), says increased energy costs are a sound investment where children's health is concerned: "Is it right, in our country, that people should have to worry about where they can take their kids fishing?" Hescox's organization has helped draft a statement describing mercury pollution's effect on the unborn and calling for stricter regulation of emissions. The statement (mercuryandtheunborn.org) has gained endorsements from more than 100 pastors and leaders, including Leith Anderson, president of the National Association of Evangelicals, and Richard Mouw, president of Fuller Theological Seminary. The statement reads in part, "One out of six babies born in the U.S. has harmful levels of mercury in their blood."

"I think that's a national tragedy," says Hescox. "Jesus said, don't do anything to hinder the children."

But another organization with endorsements from evangelicals, the Cornwall Alliance for the Stewardship of Creation, thinks some skepticism of the EPA is justified in this case. Cornwall's spokesman, Cal Beisner, said the EEN's "one out of six babies" figure is inflated, based on calculations that assume mercury could be harming children even in relatively minute amounts, an uncertainty that needs an empirical answer. (WORLD founder Joel Belz is a Cornwall advisory board member.)

Hescox said he stands by his organization's figure. Who's right? And how do two groups promoting environmental stewardship come to opposite conclusions on an environmental matter?

Much depends on the research they rely upon. The studies the EEN cites assume that mercury in umbilical cord blood is 70 percent more concentrated than in the mother's bloodstream. But cord blood mercury concentrations vary in other studies, and the EPA's estimate-which includes an uncertainty factor to account for cord blood-is that 300,000 newborns each year may be at risk. That's bad news, but at 1 in 14 births, it's half the EEN's figure. Beisner thinks even the EPA's number is too high: He believes 1 in 1,000 births is more realistic, and that any neurological harm is likely to be barely detectable.

Other organizations are weighing in. The Hawaii Seafood Council, a nonprofit promoting Hawaiian seafood, argues the fish consumption advice issued by the U.S. government in 2004 (that pregnant women and young children should eat fish no more than twice a week) is out of date and dangerously underemphasizes the health benefits of seafood. And new research shows that the element selenium, found in many fish, neutralizes mercury's effect on the brain: An EPA-funded study in 2009 found that 98 percent of the freshwater fish it surveyed in the western United States had sufficient levels of selenium to counteract mercury toxicity altogether.

Some scientists, moreover, doubt whether the efforts to reign in U.S. power plant emissions will really lower mercury concentrations in U.S. fish to acceptable levels. Roughly a third of the earth's mercury emissions comes not from industrial sources but natural ones, like volcanoes and ocean vents, and of the airborne mercury that is deposited in the United States, over half likely comes from foreign nations like China, the world's largest emitter.

The EPA predicts its new mercury and air toxics rules will save between 6,800 and 17,000 people from premature deaths, prevent 11,000 cases of acute bronchitis, and avoid 120,000 cases of aggravated asthma. (Oddly, almost all these advertised benefits would come from the reduction of pollution unrelated to the rules: "Fine particulate matter," which the EPA already regulates, will be coincidentally removed from the air as the metals and gases are scrubbed.) The agency predicts a $5 to $13 return in health benefits for every dollar invested, leading some to believe $11 billion a year in compliance costs is a bargain.

Regulation has hidden health effects that shouldn't be overlooked, though. Timothy Terrell, an economics professor at Wofford College in South Carolina and a Cornwall senior fellow, told me economists estimate that for every $10 million to $20 million in increased regulatory costs, a life is lost, statistically speaking: "You don't know who that is, but it might be that because we had lower income, we lived in a more dangerous area, drove a less safe car, had to take a more dangerous job-or maybe didn't take care of ourselves as much as we might otherwise."

Terrell said although the EPA rules may save some lives, "You're costing lives on the other side because you're reducing incomes, reducing the availability of energy, and raising costs to people of obtaining some very definite benefits from having cheaper electricity and jobs."

Republicans and a handful of Democrats in the U.S. House are concerned about those hidden costs. In September they passed the TRAIN Act, a bill that would delay implementation of the EPA's mercury and air toxics rules for a year or more while a committee studies their potential economic impact. The legislation faces Senate opposition and a White House veto threat.

Risk analysis

Looming over the dispute between the two evangelical groups is a larger conflict between two approaches to handling risk: One views nature and people as in need of protection and focuses on preventing as much risk as possible. The other views them as resilient and focuses on regulating only the most credible threats. The tension between these approaches is noticeable in debates over issues like climate change, flu immunization, and lead laws.

Some experts believe government often has a responsibility to prevent risks even when our understanding of them is still evolving. "Uncertainty doesn't dictate inaction," said Michael Vandenbergh, director of Vanderbilt Law School's environmental law program. "We act every day in response to a risk of a flood, or a hurricane, or a house burning down, even though it's uncertain whether it will occur. We buy insurance; we drive more safely."

On the other hand, setting down rules before clearly defining the problem can lead to policies based on assumption instead of fact, said Andrew Maynard, director of the Risk Science Center at the University of Michigan. Maynard, whose research background is in nanotechnology and its health hazards, was recently perturbed upon hearing that the European Commission-a group providing oversight to regulation in the European Union-planned to establish a legal definition of nanomaterials as "a policy decision" (as a representative put it), even though scientists disagree about what a nanomaterial even is.

"It seems to be saying that, 'We haven't got the foggiest what this thing called nanotechnology is, but we're going to make up a definition so we can regulate it anyway,'" said Maynard. "That leaves it in a position where we have no idea what we're regulating and why, and that can't be good for business, and it simply can't be good for people's health." He said some people automatically assume that a newly invented nanomaterial will be a health hazard, but research doesn't back up that view.

Dueling math models reflect different approaches to risk. The EPA's default method for calculating chemicals' cancer risk is a model called "linear non-threshold," which assumes that even the smallest amount of a carcinogenic substance increases a person's risk of cancer. (By this assumption, for example, a single X-ray could cause cancer.) This model is under challenge today by proponents of models based on "hormesis," the idea that tiny amounts of radiation or toxics are harmless or even beneficial.

With all the tension between cost, benefits, and risk, how do we write regulations that are good for everybody? Maynard of the Risk Science Center said the best policies invite all the stakeholders to the table, and are adaptable to change in case science brings new information to light: "Any regulation is going to be inadequate. It's just that you aim for them to be as good as possible." - Daniel James Devine