STICKING WITH THE SEAFOOD THEME, A QUESTION: HOW much fish do you eat?
Related question: Are you a pregnant woman who subsists primarily by catching and eating your own fish from a lake?
If you are an average American, your answer to the first question should be “a bit less than five grams per day on average,”1 or about four 1-pound filets of salmon, tilapia, or trout per year. And if you are an average American, your answer to the second question is almost certainly, “What? No. What the hell kind of question is that?”
If you happened to listen to the remarks of former Pennsylvania senator and multi-attempt Republican presidential candidate Rick Santorum one day in April 2015, you would have heard that the Environmental Protection Agency was using some fairly outlandish answers to those questions in order to justify one of its regulations. Here’s what Santorum said:
And here’s the calculation [EPA officials] made. The average woman in America consumes five ounces of ocean and lake fish a week. . . . This is their assumption: that pregnant women in America will consume not five ounces, but six pounds! Six pounds . . . that they caught themselves.2
The regulation that Santorum was railing against is called the MATS rule—Mercury and Air Toxics Standard. It is aimed at reducing the amount of mercury emitted from smokestacks, because mercury, generally speaking, is bad for us; it is especially bad for unborn children, affecting nervous system development and potentially causing deficits in IQ in the children later in life. But first, Santorum went on, mangling sentences and statistics along the way:
So women in America, six percent of all women in America—[the EPA] concentrated in around the Great Lakes area, so if you’re a Minnesotan woman, twenty-one percent of Minnesota women who are pregnant fish for six pounds of food a week that they consume. . . . These fisherwomen who are out there on Lake Superior catching fish, filleting it and eating it themselves, they’re going to pass on mercury to their children.
Here’s a good rule of thumb for evaluating scientific statements of any type at all: if something sounds completely outlandish, it probably is! (Note: Rule does not apply to actual principles of quantum physics. In that case, outlandish is far from a disqualifying characteristic.) Does what Santorum said sound remotely feasible? Would the EPA, no matter your opinion of the agency, actually assume that 6 percent of all American pregnant women or 21 percent of Minnesotan pregnant women catch and eat 6 pounds of fish every week? Those are truly absurd numbers.
Of course, it was not at all feasible; the EPA made no such assumption. The number they actually used was about 0.12 pounds per week—that’s fifty times less than Santorum claimed. And not only that, but the women in question were not assumed to be subsistence fishers, out there on Lake Superior as Santorum characterized them; the analysis included anyone who lived in a recreational angler household.
How did this happen? The LOST IN TRANSLATION, that’s how. This error occurs when politicians hear a scientific claim second-, third-, or fourth-hand and, along the way, the truth of the matter gets lost. It’s a game of telephone, except with the presidency or a crucially important health-related regulation at stake. This type of error is a cousin of the BLAME THE BLOGGER, since often this garbled chain of information comes from somewhere online. In this case, though, the information changes on its way to the mouths of our elected officials; sometimes that change seems intentional, or perhaps honest mistakes are made. Either way, we end up with some of the most absurd claims politicians can make.
In Santorum’s case, let’s go back to the original source to try to understand his claim. The EPA releases a Regulatory Impact Analysis, or RIA, for every regulation it proposes. For the MATS rule, this complicated document attempts to lay out what it will cost to follow the regulation—in this case, that means adding technology to smokestacks and power plants that will reduce mercury emissions—as well as what benefits the regulation will yield when fully implemented.
The benefits of reducing mercury are health related; in fact, most of the benefits that the EPA could actually monetize are “co-benefits,” results of the reduction in other pollutants that would occur if mercury-reducing technology was added to the smokestacks. Among those related pollutants is PM2.5 (which we discussed in Chapter 9), tiny particles of stuff that enter our lungs and can cause all sorts of health issues. By reducing PM2.5 emissions, we know that we can reduce asthma and heart attacks, lower the number of school and work days missed, and even prevent thousands of premature deaths every year.
The EPA found that the MATS rule would have an annual compliance cost of $9.6 billion, compared to annual benefits of between $37 and $90 billion, depending on the estimation method used.3 That sounds pretty good! And in fact, the mercury-and-fish issues Santorum attempted to highlight with the EPA’s analysis had a laughably negligible effect on those overall numbers. That’s because the PM2.5 benefits are far and away, in terms of dollar values, the biggest that the EPA could assign, while the agency could estimate only a tiny benefit associated with reducing the mercury itself (which would moderate IQ losses in children): an annual benefit of “$0.004 to $0.006 billion,” which most of us would simply call “$4 to $6 million.”
In other words, the entire premise behind Santorum’s fish fantasy is essentially meaningless in the scheme of this regulation. But if the EPA really did make some outlandish assumptions as an attempt to sell its controversial regulation, that’s at least worth a look.
Here’s the background on the numbers Santorum mangled: To determine the benefits associated with just mercury emissions reductions, the agency did an analysis involving fish consumption. Mercury, once it drops out of the sky, often falls into lakes and rivers, where it is converted to a new form called methylmercury and can accumulate in the fish that live there. We humans eat those fish, and thus we also eat mercury.
In order to determine how useful it will be to cut down on mercury emissions, the EPA had to figure out just how many people are vulnerable. Since the effects of mercury are most notable in unborn babies, the agency focused on the relevant population: pregnant women who consume fish.
The researchers did this by looking at “recreational angler households.”4 The source was a 2006 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation,5 and—this is key—included any households “that engaged in freshwater fishing during the year.” Did you go fishing even once last year? Congratulations, you are a recreational angler!
Recreational anglers are a relatively common breed; 27 percent of Minnesotans, for example, engaged in fishing at least once in a year. Other states ranged much as you might imagine: 18.4 percent in Idaho, 5.1 percent in Massachusetts, 22.8 percent in Wisconsin, and so on. The key point is that the EPA is not focusing on some ultra-rare subset of the population that catches fish in order to survive daily life.
So, how much fish do these pregnant women in recreational angler households consume? The EPA relied on earlier studies on this issue, and clearly stated in the RIA that a mean of 8 grams per day was used. That’s 56 grams per week, or 0.12 pounds per week. One-tenth of 1 pound; that’s a far cry from Santorum’s 6 pounds per week. Even further, the EPA’s “95th percentile” figure, meaning people who ate more fish than 95 percent of the recreational angler population, was 25 grams per day, still less than half of a single pound of fish per week.
So we’ve seen the source material, and we’ve seen the end result. How did recreational anglers eating a minuscule amount of fish turn into subsistence fisherwomen out on Lake Superior surviving on 6 pounds of fish per week? It turns out there were a couple of steps between the EPA and the horse’s—sorry, Santorum’s—mouth.
Let’s go backward from the former senator’s version. A spokesperson confirmed that Santorum derived his numbers from an op-ed piece in the Wall Street Journal, penned by a lawyer named Brian Potts. In that piece, Potts did indeed write that the EPA claimed that 6 percent of all pregnant women in America, and higher percentages in states like Minnesota, “subsist primarily by catching and eating as much as six pounds of lake fish a week.”6
Already, we can see some LOST IN TRANSLATION errors: Santorum abandoned the “as much as” language, which essentially meant that Potts was citing the high end of the estimates. Santorum made it sound as though 6 pounds was the average, standard amount. Yet the Wall Street Journal piece seems to have been wrong as well, if it even mentioned 6 pounds of fish at all. How did that happen? Let’s go back one step further, to a brief filed by the Cato Institute, a libertarian think tank, to the US Supreme Court about the MATS rule; Potts said his analysis for the WSJ was based directly on that brief.7
The Cato Institute’s brief is a long and complicated document, in which the authors argue that the EPA’s analysis of the negative impacts of mercury was flawed. The brief contained a fairly dramatic mistake, however: Cato based its conclusions on two separate EPA documents but conflated the findings from those as if they were one and the same.8
The first of those documents was not the RIA, but a “Technical Support Document” on the risks associated with mercury. This document presented what is known as an “appropriate and necessary” finding: before issuing a regulation, the EPA must determine that the regulation in question is, in fact, appropriate and necessary. To do this, the agency must show that some group of people would suffer harm if the regulation did not go through—in this case, they looked at “high-end” subsistence fishers.
Yes, we have finally found our subsistence fishers, these rugged souls catching and eating fish as their primary means of sustenance! The EPA noted, though, that these people represent a vanishingly small proportion of all fish consumers around the country. But no matter. These, surely, are the folks who consistently consume 6 whopping pounds of fish every week!
Well, no, not really. The average daily consumption only among these subsistence fisherwomen was 39 grams. That’s only about 0.6 pounds per week, or ten times less than we’re looking for. (Importantly, the IQ losses Santorum cited that are at the root of this issue came from the 0.12-pound-per-week rate; at 0.6 pounds, or even higher among subsistence fishers, the effects on childhood cognitive development grow even greater.) Only when we look not just at subsistence fishers on average, but at the very highest consumption rate even among these people who are already quite reliant on fish, do we find the number in question: the 99th percentile of subsistence fishers consumed 373 grams of fish per day, or about 5.75 pounds per week—close enough!
But the Cato Institute didn’t differentiate between the “Technical Support Document” analysis and the RIA analysis; they claimed that in the RIA the EPA modeled mercury exposure on children born into the subsistence households. But they were wrong. In the RIA itself, the EPA said: “To identify and estimate the size of [the] exposed population, the benefits analysis focuses on pregnant women in freshwater recreational angler households.”9 Cato either got confused or purposely conflated the two documents in order make the EPA’s analysis sound more ridiculous.
To recap, this tidbit of information about fish and mercury started out in EPA documents, morphed into something new in a think tank’s Supreme Court brief, was mildly twisted by a lawyer writing an opinion piece for the Wall Street Journal, and then utterly mangled one final time by a former senator running for president. The LOST IN TRANSLATION, in spite of the resulting absurdities, can be a bit hard to unravel; after all, Santorum did not cite the Wall Street Journal in his speech, Potts’s op-ed at the WSJ did not cite the Cato Institute, and the Cato Institute claimed it was citing the EPA directly but got the analysis fundamentally wrong (not to mention the fact that it is a rare person who will bother reading an amicus brief filed to the Supreme Court by a think tank). The key point is to look for the bizarre, absurd, or downright crazy-sounding tidbits in a political speech. Sometimes these have a strange history, and tracing them back to the source could help you better understand both the science and the policy in question.
FOR WHATEVER REASON, the EPA seems to be involved in a number of LOST IN TRANSLATION examples. Maybe this is because the agency produces a litany of complicated scientific reports in order to issue its regulations or enforce existing rules, and those rules and regulations have been consistent targets of the pro-business, antiregulation types in Washington.
In another such example, Kentucky senator and 2016 presidential candidate Rand Paul told a ridiculous-sounding story about EPA overreach in a speech in June 2015:
Over 40 years, we now define pollutants as dirt and your backyard as a navigable stream. It would be funny if we weren’t putting people in jail for it. Guy named Robert Lucas, down at the southern part of Mississippi, 10 years ago was 70 years old. He was put in prison for 10 years. He just got out. Ten years without parole. Ten years without early release. He was convicted of a RICO conspiracy [under the Racketeer Influenced and Corrupt Organizations Act]. RICO’s supposed to be something you go after gangsters for. You know what his conspiracy was? Conspiracy to put dirt on his own land. We’ve gone crazy.10
Indeed, jailing a septuagenarian for “conspiracy to put dirt on his own land” does sound crazy! If only that version of the tale were remotely true.
Paul was discussing this case in connection to another EPA regulation, known as the Clean Water Rule, which specifies the types of lakes, rivers, and streams that are protected from any dumping of contaminants. The rule caused substantial controversy because of a somewhat opaque definition of “waters of the United States”: Opponents of regulation repeatedly claimed that anything down to a puddle in your backyard could be considered a protected waterway if the EPA unilaterally decided as much. On the other side, EPA and environmental groups said those claims were completely overblown, and the rule simply represented a clarification of which waterways the Clean Water Act covers.
Senator Paul’s story about Robert Lucas predated the new EPA rule, however; he told a version of it in his 2012 book Government Bullies, though in that one he had more space to give some of the details. We’ll focus on his shortened stump speech version, since far more people would have heard that than would have read his book. First, let’s get the basic facts of the case straight. The man in question did get a ten-year sentence, though he was released early, after about seven years. Strike one for Paul. He also could not have been seventy years old when he went to jail, since he was seventy-five when he was released after those seven years. Strike two! And finally, there were, in fact, no RICO charges at all. Paul strikes out before we even approach the fundamentally wrong description of the case in question.
Paul claimed that this old man was sent to prison for literally putting dirt on his own land. Here’s how the EPA described it: “The most significant criminal wetlands case in the history of the Clean Water Act.”11 What gives?
The Lucas case began back in the 1990s. Paul may have gotten his version of the story from any of a collection of small Mississippi newspapers in which aggrieved opinion pieces appeared when Robert Lucas was convicted and went to prison, in 2008. These included the Jackson Northside Sun (sample headline: “Bureaucratic Nightmare Lands Three in Prison”); the Starkville Daily News (“Tyranny Is Still Alive and Well in Mississippi”); and the Greenwood Commonwealth (“EPA Frenzy Illustrates Threat to Landowners”).
In the McComb Enterprise-Journal, several articles by Wyatt Emmerich (who happens to own that paper) sound a lot like Paul’s version of events. Emmerich doesn’t necessarily dispute the facts of the case, but simply argues that the EPA shouldn’t have the authority to call the land in question a “wetland” when there is no standing water and it sits well above sea level.
Well, that argument doesn’t hold water. Here’s the EPA’s official definition, also used by the Army Corps of Engineers:
Wetlands are areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.12
No mention of sea level, and a conspicuous inclusion of “ground water.” Just because you don’t see a puddle doesn’t mean you’re not standing in a wetland! In the case in question, the fact that the area qualified as a wetland is important, but it’s not all that Paul got wrong.
Robert Lucas, along with his daughter Robbie Lucas Wrigley and an engineer, M. E. Thompson Jr., did not just put dirt in their backyard. They filled in those wetlands covering about 260 acres (that’s a big yard!) in order to build low-cost housing units, including roads and driveways, as well as septic systems. This development project went ahead in spite of repeated warnings and cease-and-desist orders.
In fact, the Army Corps of Engineers warned Lucas as far back as 1996 that the property he was developing contained wetlands and thus could not be turned into homes. According to the Department of Justice, which indicted the group (on forty-one counts, convicted for forty) in 2004, when George W. Bush was in office: “The indictment recites a long record of warnings that the Mississippi Department of Health and other regulatory agencies issued to the defendants notifying them of the public health threat they were creating by continuing to install septic systems in saturated soil.”13 Again, a wetland doesn’t necessarily mean a swamp; this land was saturated with ground water, and underground septic systems don’t mesh with saturated soil.
In spite of all those warnings, as well as cease-and-desist orders from both the Army Corps and the EPA, Lucas went ahead with the development and sale of his housing units, known as Big Hill Acres. Then, according to the Department of Justice, it got predictably gross: “The Big Hill Acres residents have suffered from seasonal flooding and the discharge of sewage from failing septic systems onto the ground around their homes.” How far have we come from “put[ting] dirt on his own land”?
Reading Emmerich’s newspaper columns—or the other small-town papers’ antigovernment screeds—on the case illustrate where Paul may have gotten his watered-down version. Emmerich himself mangled the details of the case, arguing that Lucas had never been sued by those who bought his housing units (Department of Justice: “The development has been the subject of numerous civil lawsuits by tenants against the developers.”), that “nobody knows what a ‘wetlands’ is” (see the specific definition from the EPA and Army Corps of Engineers presented earlier), and that this was all a case of the federal government deciding arbitrarily to “squash them like bugs.”14
In his book, Paul repeated many of the details from Emmerich’s columns, and in his speech he boiled it all down to a much more pithy sound bite. This is one part LOST IN TRANSLATION, one part BLAME THE BLOGGER, one part OVERSIMPLIFICATION—and taken all together, outrageously misleading. This particular case obviously had a significant effect on the people duped into buying totally inadequate properties, but the larger issue of wetland violations is no small problem. A half-million football fields’ worth of wetlands disappear in the United States every year,15 partially because of coastal impacts, but also in part because of land-use changes like that perpetrated by Robert Lucas.
That loss is not trivial. Here’s how the Department of the Interior characterizes wetlands’ importance:
Wetlands provide a multitude of ecological, economic and social benefits. They provide habitat for fish, wildlife, and a variety of plants. Wetlands are nurseries for many saltwater and freshwater fishes and shellfish of commercial and recreational importance. Wetlands are also important landscape features because they hold and slowly release flood water and snow melt, recharge groundwater, act as filters to cleanse water of impurities, recycle nutrients, and provide recreational opportunities for millions of people.16
No one would argue that putting dirt on one’s land should necessarily require a prison term. But the Clean Water Act exists for a reason, and enforcement of regulations is sometimes necessary. Politicians can obviously call out what they consider to be government overreach, but it doesn’t help anybody if the details become mangled beyond anything remotely resembling the facts of the case. When it comes to legal issues that have a basis in science—preservation of wetlands, in this case—it becomes both easier for the elected officials to misrepresent the truth and more important to avoid doing so. The only way the water and air stay clean is if we—the constituents of these politicians—do our part, by taking these absurd claims and outlandish tales with a grain of salt.