Monday, June 29, 2015

Should Minnesota sue SCOTUS?

Today the Supreme Court of the United States seems to have concluded that consideration of industrial costs is more important than public health. They remanded the United States Environmental Protection Agency's mercury regulations back to the Agency "to reconsider costs to power plants before deciding whether the regulations are 'appropriate and necessary.' Presuming it considers these costs and decides that the regulations remain necessary, the EPA may again impose the new emissions standards."

Minnesota's Impaired Waters

One factor I haven't seen mentioned is that, in Minnesota, the state depends on federal actions to address mercury pollution and related fish consumption advisories. "There is a strong connection between the Minnesota Department of Health Fish Consumption Advisory (FCA) and MPCA’s impairment determination....Atmospheric deposition of mercury is uniform across the state and supplies more than 99.5% of the mercury getting into fish." "Currently, 998 impaired waters are covered by the TMDL (671 lakes and 327 river reaches) and 298 ( 204 lakes and 94 river reaches) are not covered by the TMDL and remain on the 2008 list for mercury." (page 8)

Other recent court decisions may have created precedents for a suit by Minnesota and/or its citizens agains SCOTUS and/or the EPA (joint and several liability?). Dutch citizens have successfully sued their government to force greenhouse gas reductions. Washington state teenagers have been similarly successful in legal action against that state.

Minnesota's plan to reduce mercury releases

In Minnesota, I suspect it should be possible to connect the dots between fish consumption advisories, reduced fishing license sales, reduced tourism, diminished sales of boats, tartar sauce, beer batter and lemons. It might even make sense to use a crowd-sourced funding strategy for a citizen suit based on the rationale that the federal government (EPA) can't fulfill its responsibilities because of the decision of SCOTUS. This means Minnesota can't attain needed mercury reductions and its economy and public health are each at some degree of risk due to failures of and by the federal government to meet its obligations in a timely manner. It seems to me that a failure by Minnesota to sue SCOTUS and EPA would make us less responsible than Dutch citizens and Washington state teenagers. I hope we're better than that, don't you?

[UPDATE: David Roberts writes on Vox that the SCOTUS decision may be meaningless, which would make a lawsuit moot.]
[UPDATE 2: Justice Kagan's dissent, which covers better than I did many points alluded to above.]

Mercury in Retrograde

By Sheryl Luna 

The day ended badly with a broken ankle,
a jinxed printer, and a dead car. The dry yellow grass
against the sunset saved me. Roosters
pranced across a lawn of shit, proudly plumed
in black feathers, bobbing before the gray goats.
It was the first day I saw god in the quiet,
and found a mustard seed was very small.
There I had been for years cursing “why?”
and all the gold in the sun fell upon me.
There was a white mare in the midst
of brown smog, majestic in the refinery
clouds. Even the radio wouldn’t work!
My mother limps and her hair falls out.
The faithful drive white Chevy trucks
or yellow Camrys, and I’m here golden
on the smoking shock-less bus.
I lost language in this want, each poem
dust, Spanish fluttered
as music across the desert, even weeds
tumbled unloved. The police sirens seared
the coming night, dogs howled helplessly
Lo I walk the valley of death, love
lingers in my hard eyes. Mañana never
comes just right. I mend myself in the folds
of paper songs, ring my paper bells
for empty success. Quiero Nada,
if I sing long enough, I’ll grow dreamlike
and find a flock of pigeons, white under
wings lifting awkward bodies like doves
across the silky blue-white sky.

Photo by J. Harrington