Amicus Curiae Brief — Michigan v. Envtl. Prot. Agency, 135 S. Ct. 702 (2014) (No. 14-46)
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Supre. ne Cour, Ub.
FiicbD
A ae
Nos. 14-46, 14-47, and 14-49 MAR 4 - 2915
PORrre fOr Th OS oe
IN THE
Supreme Court of the Anited States
STATE OF MICHIGAN, ET AL.,
Petitioners,
Vv.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.,
Respondents.
On Writs of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit
BRIEF OF AMICI CURIAE
NATIONAL CONGRESS OF AMERICAN
INDIANS, FEDERALLY RECOGNIZED INDIAN
TRIBES, AND INTER-TRIBAL FISH
COMMISSIONS IN SUPPORT OF
RESPONDENTS
JARED A. GOLDSTEIN KEVIN LYSKOWSKI
PROFESSOR OF LAW Counsel of Record
ROGER WILLIAMS 1300 PENN. AVE., NW, 190-321
UNtv. SCH. or LAW WASHINGTON, DC 20004
BRISTOL, RI 02809 Tel: (240) 506-5183
klyskowski@post.harvard.edu
Counsel for Amici Curiae
[Additional Counsel Listed on Inside Cover]
RIYAZ KANJI
KANJI & KATZEN P.L.L.C.
303 DETROIT ST., STE. 400
ANN ARBOR, MI 48104
PHIL KATZEN
JOHN SLEDD
KANJI & KATZEN P.L.L.C.
401 2ND AVE. S., STE. 700
SEATTLE, WA 98104
ELIZABETH KRONK
WARNER
ASSOC. PROFESSOR OF LAW
THE UNIV. OF KANSAS
SCH. OF LAW
LAWRENCE, KS 66045
JOHN DOSSETT
CoLBY D. DUREN
REBECCA HOWLETT
NATIONAL CONGRESS OF
AMERICAN INDIANS
1516 PSt., NW
WASHINGTON, DC 20005
RICHARD A. GUEST
NATIVE AMERICAN RIGHTS
FUND
1514 P St., NW, STE. D
WASHINGTON, DC 20005
ERICK ARNOLD
BAD RIVER BAND OF
LAKE SUPERIOR
CHIPPEWA TRIBE
72682 MAPLE ST.
ODANAH, WI 54861
SEAN COPELAND
FOND DU LAC BAND OF
LAKE SUPERIOR
CHIPPEWA
1720 BIG LAKE RD.
CLOQUET, MN 55720
KEKEK JASON STARK
LAC COURTE OREILLES
BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS
13394 W. TREPANIA RD.
HAYWARD, WI 54843
DAVID UJKE
RED CLIFF BAND of LAKE
SUPERIOR CHIPPEWA
88385 PIKE RD.
BAYFIELD, WI 54814
HOWARD BICHLER
ST. CROIX CHIPPEWA
INDIANS OF WISCONSIN
24663 ANGELINE AVE.
WEBSTER, WI 54893
COLETTE ROUTEL
PROFESSOR OF LAW
WILLIAM MITCHELL
COLLEGE OF LAW
875 SUMMIT AVE.
ST. PAUL, MN 55105
ROBERT C. LOTHROP
COLUMBIA RIVER INTER-
TRIBAL FISH
COMMISSION
700 NE MULTNOMAH ST.
STE. 1200
PORTLAND, OR 97232
TABLE OF CONTENTS
ee ee ED vicnnicricneincinnncieniduimiiniments ii
og gt + EE reeeeerneeer arn esooen 1
INTRODUCTION AND SUMMARY
Be ET vpcedidcennnptivnsenenninscnnsiniisinenasenmnssansennines 3
NE sicitnicticsinnieniqnitnnseintnninvnihnneuinneinciaaien 6
I. Mercury Emissions from Domestic
EGUs Cause Major Health, Cultural,
And Other Harms to American Indians............ 6
A. Mercury Emissions Harm Indian
ENE a ae 7 Oe Oe OR 8
B. Mercury Emissions Harm Indian
EERSTE AE eee ee RT TON Neen 13
C. Mercury Emissions Harm Indian
FREE ETET DS OMOEA IRD APOE EE 16
Il. The MATS Rule Will Benefit American
BI cecstitcictincsctetnnnineninncsciceresss 19
III. Congress Did Not Require EPA to
Assess the Monetary Value of Indian
Health, Fishing Rights, and Traditional!
PITTI viciesccisduotiaudesniciebacdapdenbadovisienvinvaneedia 23
aia i cecieanldeelaaneileiabeinadadibed 27
, ETSESCRE ESSA Greemeceramc eet re wt meas Sennen la
Mercury Fish Advisory for Bad River
Band of Lake Superior Chippewa Tribe
i
TABLE OF AUTHORITIES
Cases
Grand Traverse Band of Ottawa &
Chippewa Indians v. Dir., Mich. Dep't
of Natural Res.,
141 F.3d GOS (Oth Cir. 19GB) ......ccccccecvecccc0000000002 17
Lac Courte Oreilles Band of Lake
Superior Chippewa Indians v. Voigt,
Ps FY. dl 17
Menominee Tribe of Indians v. United
tee, BOE TEE. GBG CED. cvcccscsccevccsessscsevesceeseese 25
Minnesota v. Mille Lacs Band of
Chippewa Indians,
ee es Ee IED cicsvninncsacdonseciniconsivnnenisene . i 17
Seminole Nation v. United States,
I III «a. oa ccsecmiradcsistisenetnessnntnnniaehenias 25
United States v. Adair,
723 F.2d 1304 (Oth Cir. 1963) ........00000000020200000005 17
United States v. Winans,
I Pt oO CD cccicinicnenctvncinesiveinntemnisaninninneiin 17
Washington v. Wash. State Commercial
Passenger Fishing Vessel Ass'n,
Be i EI a iccirisseniesntnstisassnnncsnniuociomenssenmnnnta 17
Statutes
eg TE IIE snsveccansccscndidenninaiebneennnrnniseaanemnaieds 24
ee ee ekeiitikveeiniitnittaninnioniciceinnstindeis 3, 5, 19
Foes FR & | ESAS acerenemene cree 24, 26
ee III vciccicesiscintcnsenigpccmeninatase’ 6, 26
GB UT E.G. © FERRET ccccescivvressesiccsscesevscsevnscsss 5,19
Administrative Materials
76 Fed. Reg. 24976 (May 3, 201 a adeubinnindianatins? passim
77 Fed. Reg. 9304 (Feb. 16, REM,” passim
EPA, Emissions Overview Memorandum............... 7
EPA, Mercury Study Report ............c-ccccccceeceeoeceese..., 7
EPA, National Listing of Fish Advisories
po RGR a ene 10
EPA, Regulatory Impact Analysis,
ce RIE eel ose eT 7, 22, 23
EPA, Responses to Public Comments,
co NEA EE SR 21, 22
EPA, Revised Mercury Risk Technical
Support Document.....0...0.o.cocccecec 7, 20, 22
MATS Rule Comment, Fond du Lac
Band of Lake Superior Chippewa............... 16, 19
MATS Rule Comment, Forest County
Potawatomi Community........................... passim
MATS Rule Comment, Great Lakes
Indian Fish and Wildlife
RRR gS at Te ne NODS 10, 13, 16, 18
MATS Rule Comment, Sandra Kuntz............... 11
MATS Rule Comment, Little River Band
of Ottawa Indians 20.0... ccc. passim
MATS Rule Comment, National Tribal
Gn Rie 9, 15, 18
State-Tribal Partnership for Developing
Advisories for the St. Lawrence River
MINE schitisciturtecsinenmnceueeeeetn uit Soe 11
iv
Statewide Michigan Mercury Total
Maximum Daily Load: Public Review
SE HI cisitcsstesscinnasechindsindunisieeenbtinensenes
Ot} Authoriti
Cohen’s Handbook of Federal Indian
BE ET NED sscirneniacecidulasiaiisbinensenemcnens
Letter from Norm W. Deschampe,
President, The Minnesota Chippewa
Tribe, to Michael Leavitt, Adm’r, EPA
I I creel aidiahinscsennmusiieiiasion
Allison M. Dussias, Spirit Food and
Sovereignty: Pathways for Protecting
Indigenous Peoples’ Subsistence Rights,
58 Cleveland St. L. Rev. 273 (2010) .......
Sue Erickson, Doing It Right: A Boy,
His Teachings and His Net,
Mazina’igan (2004) .20..........cccccccccceeeeeeeees
Executive Order 12898,
59 Fed. Reg. 7629 (Feb. 16, 1994)...........
Executive Order 13175,
65 Fed. Reg. 67249 (Nov. 9, 2000) ..........
Jane M. Hightower et al., Blood Mercury
Reporting in NHANES: Identifying
Asian, Pacific Islander, Native
American, and Multiracial Groups,
114 Envtl. Health Persp. 173 (2006) .....
Sandra W. Kuntz et al., Methylmercury
Risk and Awareness Among American
Indian Women of Childbearing Age
Living on an Inland Northwest
Reservation, 109 Envtl. Res. 753 (2009)
simeibevnaba 24
Vv
C.M. Neumann et al., Methylmercury in
Fish From Owyhee Reservoir in
Southeast Oregon: Scientific
Uncertainty and Fish Advisories,
201 Sci. of the Total Env’'t 205 (1997) ..........000000... 8
Catherine A. O’Neill, Environmental
Justice in the Tribal Context: A
Madness to EPA’s Method,
38 Envtl. L. 495 (2008) ..............000..... 10, 14, 15, 18
Letter from William W. Phillips, Tribal
Chief, Aroostook Band of Micmacs, to
SP I I nas stainmaanenans 15
E.J. Ringquist, Environmental Justice:
Normative Concerns and Empirical
Evidence, in Environmental Policy 41
Ses, Vee Oe i Gg MD piinissdticncivneevacdcecvnctrecessere 8
Amy Roe, Fishing for Identity: Mercury
Contamination and Fish Consumption
Among Indigenous Groups in the
United States, 23 Bull. of Sci., Tech. &
Be tii ccs cuitanabngic dvds scsuiindeisnsiokasdceds 8
Letter from James H. Schlender, Exec.
Adm’r, Great Lakes Indian Fish and
Wildlife Commission, to EPA
I in seatianenaumnniendenbatemidn 14
Cass R. Sunstein, The Limits of
Quantification, 102 Calif. L. Rev.
I ct Masts keene sicepcendctenandamuibuseeniandcansieuins 26
Tribal Air Resources J. vol. VI (2014)
INTEREST OF AMICI*
Amici are federally recognized Indian tribes and
inter-tribal organizations that are committed to
protecting tribal members and tribal natural
resources. Amici have a strong interest in the impact
on American Indians and fisheries from the mercury
emissions regulated by the rule at issue in this case.
The National Congress of American Indians
(NCAD) is the oldest and largest national organization
addressing American Indian interests. Founded in
1944, NCAI represents more than 250 federally
recognized Indian tribes and Alaska Native villages.
NCAI and its members are dedicated to protecting
the health and traditional lifeways of American
Indians and tribes, as well as the fisheries and other
natural resources on which tribes depend.
The Bad River Band of Lake Superior Chippewa
Tribe, the Fond du Lac Band of Lake Superior
Chippewa (“Fond du Lac Band”), the Lac Courte
Oreilles Band of Lake Superior Chippewa Indians,
the Red Cliff Band of Lake Superior Chippewa, the
St. Croix Chippewa Indians of Wisconsin, and the
Sokaogon Chippewa Community are bands of Ojibwe
American Indians. The tribes’ reservations are
located in northern Wisconsin and Minnesota. Under
various treaties, the tribes ceded land to the United
States and reserved rights to fish, hunt, and gather
in the ceded territories. Many of the tribes operate
fish hatcheries that provide on- and off-reservation
* The parties have filed letters with the Clerk indicating
blanket consent to the filing of amicus briefs. No counsel for any
party authored this brief in whole or in part, and no person or
entity other than above-named amici curiae and their counsel
made a monetary contribution intended to fund the preparation
or submission of this brief.
2
stocking of native fish, and all of the tribes manage
fisheries resources to ensure safe and abundant
supplies of fish for tribal members.
The Great Lakes Indian Fish and Wildlife
Commission (GLIFWOC) is a natural resource agency
of eleven Chippewa (or Ojibwe) tribes, including the
tribes discussed in the preceding paragraph, all of
which ceded land to the United States under various
treaties. The treaty-ceded territories encompass
portions of east-central Minnesota, the northern
third of Wisconsin, and the Upper and Lower
Peninsulas of Michigan. GLIFWC’s mission is to
assist its member tribes in the recognition and
implementation of their treaty-reserved, off-
reservation hunting, fishing, and gathering rights.
Part of GLIFWC’s mission includes ecosystem
protection, helping to ensure that natural resources
are healthy and abundant throughout the ceded
territories. GLIFWC provides comprehensive
natural resource management services to its member
tribes, including fisheries management, and has
tested mercury levels in fish since 1989.
The Columbia River Inter-Tribal Fish Commission
(CRITFC) provides fisheries technical services for
four tribes in the Northwest (the Yakama, Warm
Springs, Umatilla, and Nez Perce tribes). CRITFC
and its member tribes are actively involved in
fisheries management throughout the Columbia
River Basin, which covers nearly 260,000 square
miles and extends into seven states. CRITFC is
dedicated to ensuring fisheries benefits for its
member tribes now and in the future.
3
INTRODUCTION AND
SUMMARY OF ARGUMENT
This Court granted certiorari to consider whether
the Environmental Protection Agency (EPA or “the
Agency”) unreasonably declined to consider costs of
regulation in deciding whether to regulate hazardous
air pollutants emitted by electric utility steam
generating units (EGUs). The Court of Appeals
concluded that it was reasonable for EPA not to
consider costs in deciding to regulate EGUs under
Section 112 of the Clean Air Act, 42 U.S.C. § 7412.
Pet’r’s App. 33a. Petitioners and their amici argue
that the statute requires EPA to consider costs — and,
specifically, to weigh the costs against the benefits of
regulation — before deciding whether to regulate.
They urge this Court to reverse the Court of Appeals
and vacate EPA’s rule regulating EGUs.
In attacking EPA’s decision, petitioners and their
amici repeatedly disparage the benefits of the
Agency’s rule, which is known as the Mercury and
Air Toxics Standards (MATS) Rule, variously
describing the benefits as “minimal,” “negligible,” and
“de minimis.” E.g., Mich. Br. at 46; U.S. Chamber of
Commerce Br. at 13; Cato Inst. Br. at 5. For
example, the state petitioners assert over and over
that EPA calculated the annual benefit from the
rule’s mercury emission reductions as being only $4
to $6 million. See Mich. Br. at 4, 13, 19, 32, 47.
However, the $4 to $6 million calculation is merely
EPA’s estimate of the benefits of avoiding IQ losses
from EGU emissions of mercury. See 77 Fed. Reg.
9304, 9428 (Feb. 16, 2012). After providing that
estimate, EPA went on to explain: “[T}hese
calculated benefits are a small subset of the benefits
of reducing [mercury] emissions.” Jd. Accordingly,
4
petitioners mischaracterize the record and grossly
understate the benefits of the MATS Rule.
Amici are uniquely positioned to explain
substantial benefits of the MATS Rule and correct
the misstatements of petitioners and their amici.
Although mercury pollution has been shown to pose
risks for the population at large and to pose
disproportionate risks for certain racial and
socioeconomic groups, American Indians are perhaps
more adversely impacted by mercury emissions than
any other subpopulation in the United States. Fish
consumption is the primary pathway for human
exposure to methylmercury (the organic form to
which mercury is converted after being emitted by
EGUs). Many American Indians consume fish at far
higher rates than the general population (in some
instances, up to 4 or 5 times as high). As a result,
American Indians are disproportionately impacted by
mercury emissions. The emissions harm Indian
health, putting tribal members at unusually high risk
for neurodevelopmental disorders, cardiovascular
disease, autoimmune deficiencies, and other adverse
health effects from methylmercury exposure. In
addition, mercury emissions harm Indian culture,
threatening longstanding traditions of fishing and
fish consumption that are central to many tribes’
cultural identity. Finally, mercury emissions harm
Indian subsistence, contaminating food sources that
many tribal members depend on for survival. In
comments to EPA on the proposed MATS rule, tribes
and inter-tribal organizations repeatedly emphasized
the adverse health, cultural, and subsistence impacts
on American Indians from EGUs’ mercury emissions.
The MATS Rule will substantially abate the
mercury-related harms suffered by American Indians
5
and benefit them significantly. Consistent with
Congress’s expressed intent in Section 112 to protect
“sensitive subpopulations,” 42 U.S.C. § 7412(n)(1)(C),
EPA, in the rulemaking process, considered and
addressed the adverse health and other impacts of
mercury emissions on American Indians. For
example, EPA’s assessment of the public health risk
from EGUs was based on peer-reviewed data on fish
consumption rates for high-fish-consuming groups,
including tribes. Moreover, EPA concluded that some
American Indians could receive an especially great
benefit from the MATS Rule due to their fish
consumption patterns. EPA did not, and concluded
that it could not, monetize many of the mercury-
related benefits of the MATS Rule. However, that
does not mean that the benefits are, as petitioners
and their amici contend, “minimal,” “negligible,” and
“de minimis.” Mich. Br. at 46; U.S. Chamber of
Commerce Br. at 13; Cato Inst. Br. at 5. Rather, for
American Indians, the health, cultural, and
subsistence benefits to be gained from reduced
mercury emissions under the MATS Rule are
substantial and urgently important.
In the hundreds of pages petitioners have
submitted to this Court, petitioners never once
mention the significant benefits to American Indians
and other at-risk communities from reductions in
mercury emissions. Instead, petitioners content
themselves with mocking the MATS Rule by
comparing the costs imposed by the rule to the single
benefit for which a dollar figure had been estimated.
After more than a decade of delay, petitioners ask
this Court to order that the mercury rule be delayed
further, perhaps indefinitely, so that EPA can
attempt to put a price on the all the other benefits of
6
the rule and compare the costs and benefits. As
detailed below, these benefits include crucial
protections for Indian health, fishing rights, and
traditional cultures, protections that are not
pecuniary in nature but help the United States fulfill
its legal duties to American Indians and tribes.
These benefits cannot readily be reduced to dollar
figures. Congress instructed EPA to consider
“hazards to public health,” not costs, in making the
threshold decision whether regulation is “appropriate
and necessary.” 42 U.S.C. § 7412(n)(1)(A). Given the
voluminous evidence that mercury emissions pose
severe hazards to public health, including grave
hazards to American Indian communities, regu!ation
of those emissions undoubtedly is appropriate and
necessary.
ARGUMENT
I. Mercury Emissions from Domestic EGUs
Cause Major Health, Cultural, and Other
Harms to American Indians
Petitioners and their amici contend that, because
mercury emissions circulate in the atmosphere
globally, they have “little localized impact.” Cato
Inst. Br. at 5; see also Util. Air Regulatory Group Br.
at 12-13 (“Only a small fraction of the mercury
emitted by EGUs deposits in the United States. ”).
These statements unduly minimize the harms caused
by EGUs’ mercury emissions. The record shows not
only that mercury emissions from domestic EGUs
have a diffuse, global effect, but also that they cause
concentrated, severe harms to at-risk populations in
the United States, including American Indians.
The basic pathway for human exposure to
mercury from EGUs is well understood: Mercury is a
7
naturally occurring element (for example, in coal) and
is released into the environment when fossil fuels are
burned to fire EGUs. After circulating in the
atmosphere, mercury eventually precipitates and is
deposited back onto the Earth’s land and water.
Microbial action then converts mercury into
methylmercury, which can be ingested by aquatic
organisms and can “bioaccumulate” in greater
concentrations as organisms higher up the food chain
consume those lower down. See generally Mercury
Study Report (MSR) vol. III, at 2-6 to 2-18; see also
Regulatory Impact Analysis (RIA) at 4-3 to 4-4;
Emissions Overview Memorandum at 1. “[{Tjhe
predominant exposure pathway by which humans are
affected by [methylmercury] is by ingestion of fish
containing it.” 76 Fed. Reg. 24976, 24999 (May 3,
2011).
EGUs are by far the largest U.S. anthropogeiuic
sources of mercury emissions. 76 Fed. Reg. at 24977;
see also RIA at 2-7, Table 2-5. EPA estimates that up
to 29% of U.S. watersheds have domestic-EGU-
attributable mercury deposition that contributes to
potential exposures above the maximum acceptable
oral dose for methylmercury. 77 Fed. Reg. at 9311;
Revised Mercury Risk Technical Support Document
at 86.
EPA has also determined that, for many American
Indians, “average exposures to methylmercury may
be more than two-times greater than _ those
experienced by the average population.” MSR vol. IV
at 7-2. The greater methylmercury exposure derives
from greater fish consumption. “{S]ome Native
American populations report fish consumption rates
far in excess of the general population.” MSR vol. VII
at 2-2. Indeed, for many tribes, fish consumption
8
rates are so high that EPA’s estimate of two-times
greater exposure may be a gross underestimate:
studies have shown that “[s]ome indigenous
subpopulations eat 4 to 5 times the amount of fish
assumed in EPA models that determine fish
consumption advisories.” Amy Roe, Fishing for
Identity: Mercury Contamination and _ Fish
Consumption Among Indigenous Groups in the
United States, 23 Bull. of Sci., Tech. & Soc’y 368, 370
(2003) (quoted in MATS Rule cmt. of Little River
Band of Ottawa Indians at 49) (citing C.M. Neumann
et al., Methylmercury in Fish From Owyhee Reservoir
in Southeast Oregon: Scientific Uncertainty and Fish
Advisories, 201 Sci. of the Total Env’t 205, 212 (1997),
and E.J. Ringquist, Environmental Justice:
Normative Concerns and Empirical Evidence, in
Environmental Policy 241 (N.J. Vig et al. eds., 2000)).
Greater methylmercury exposure injures
American Indians in a variety of ways, causing
harms to their health, culture, and subsistence.
Petitioners and their amici address health harms for
at-risk populations generally. See, e.g., Cato Inst. Br.
at 9-17. However, they do not discuss American
Indians specifically or mention cultural or
subsistence-related harms at all, thereby evincing a
significant under-appreciation of the many adverse
impacts caused by EGU mercury emissions.
A. Mercury Emissions Harm Indian Health
Methylmercury is a serious public health threat,
and indeed is even more so for American Indians
than almost any other segment of the population.
Methylmercury exposure has been linked to disorders
including cardiovascular disease, autoimmune
deficiencies, and infertility, see, e.g., 76 Fed. Reg. at
25080-25081 (discussing scientific research), and
9
blood mercury levels of American Indians are among
the highest of any racial or ethnic group in the
United States. See Jane M. Hightower et al., Blood
Mercury Reporting in NHANES: Identifying Asian,
Pacific Islander, Native American, and Multiracial
Groups, 114 Envtl. Health Persp. 173, 174 (2006).
In comments to EPA on the proposed MATS Rule,
tribes and inter-tribal organizations repeatedly
expressed great concern about disproportionate
adverse health effects of methylmercury on American
Indians. For example, the Forest County Potawatomi
Community (FCPC) noted:
While mercury detrimentally affects the health of
the entire U.S. population, because of the Tribe’s
traditional sustenance way of life, which includes
a heavy reliance on fish and other natural
resources, we are disproportionately impacted by
the effects of mercury emissions from EGUs.
MATS Rule cmt. of FCY?C at 3. Similarly, the
National Tribal Air Association (NTAA), an air
quality management organization with more than 50
member tribes, stated: “Tribes face
disproportionate health and environmental impacts
from EGU mercury emissions ” MATS Rule cmt.
of NTAA at 2.
Women of child-bearing age are a subpopulation
of great concern, due to the potential for adverse
effects on children exposed to methylmercury in utero
through maternal fish consumption. 76 Fed. Reg. at
24978, 24983. A highly potent neurotoxin,
methylmercury “targets the brain of developing
organisms, [and] is linked to neurobehavioral testing
disorders including deficits in attention span, fine
motor function, language, visual-spatial ability and
10
memory even at low exposure levels.” Sandra W.
Kuntz et al., Methylmercury Risk and Awareness
Among American Indian Women of Childbearing Age
Living on an Inland Northwest Reservation,
109 Envtl. Res. 753, 753 (2009).
In comments to EPA on the proposed MATS Rule,
tribes and inter-tribal organizations expressed strong
concerns about the impact of methylmercury
exposure on children and women of child-bearing age.
See, e.g., MATS Rule cmt. of GLIFWC at 2; MATS
Rule cmt. of Little River Band of Ottawa Indians at 1.
Those concerns were well-justified. For example,
research has indicated that children in Great Lakes
tribal populations suffer IQ losses ranging from 6.2 to
7.1 points due to methylmercury exposure. Catherine
A. O'Neill, Environmental Justice in the Tribal
Context: A Madness to EPA’s Method, 38 Envtl. L.
495, 531 (2008) (citing research reported by the
Chairman of the Leech Lake Tribal Council and the
Leech Lake Band Department of Natura] Resources).
Fish consumption advisories warning of mercury
contamination in fish are widespread and show how
the nation has been forced to adapt to the reality of
pervasive methylmercury contamination. All 50
states have fish consumption advisories for mercury.
See EPA Nat'l Listing of Fish Advisories Technical
Search, available at http://fishadvisory
online.epa.gov/Advisories.aspx. Moreover, in some
states, all (or nearly all) of the waters are
contaminated with mercury and accordingly are
subject to mercury-related fish consumption
advisories. See, e.g., Statewide Mich. Mercury Total
Maximum Daily Load: Public Review Draft (2013) at
9, available at http://www.michigan.gov/documents/
deq/wrd-swas-hgtmdl-draft_415360_ 7.pdf (all inland
11
lakes and several hundred river miles subject to
mercury fish advisories).
Tribes and inter-tribal organizations have been
active in taking steps to protect individuals against
methylmercury exposure. Tribes often partner with
states in developing fish consumption advisories and
other measures to protect the public, sharing and
interpreting data on fish, administering surveys on
fishing and fish consumption, and developing
educational materials for tribal members. See, e.g.,
State-Tribal P’Ship for Developing Advisories for the
St. Lawrence R. Watershed at 8, available at
http://water.epa.gov/scitech/swguidance/fishshellfish/
fishadvisories/upload/forum2014-schottenfeld.pdf. In
addition, tribes and inter-tribal organizations issue
mercury fish advisories of their own. The Appendix
to this brief includes an example of such an
advisory — one prepared by GLIFWC for use by
members of the Bad River Band of Lake Superior
Chippewa (the “Bad River Advisory” or “Advisory”).
Despite the diligent efforts of tribes, inter-tribal
organizations, and many states to protect tribal
members from overexposure, mercury fish advisories
are not an adequate or appropriate substitute for
eliminating mercury contamination in the first place.
For example, as a researcher explained in a comment
to EPA on the proposed MATS Rule, awareness of
fish advisories among some American Indian
subpopulations is low: a survey of American Indian
women of child-bearing age in the Northwest showed
that 80% were unaware of state or tribal fish
advisories. See Kuntz et al., supra, at 755 (cited in
MATS Rule cmt. of Sandra Kuntz at 1).
Further, even for American Indians who know of
and rely on fish consumption advisories, the task of
e€
12
avoiding overexposure to methylmercury can be
dizzyingly complex. Tribes and _inter-tribal
organizations try to present advisory information as
simply and clearly as possible, but there is only so
much they can do to ease the complicated task of
avoiding overexposure. The Bad River Advisory
illustrates the challenge of creating a simple, easy-to-
follow guide for fish consumption. The Advisory
contains:
1. two different maps and two different sets of
instructions (one for higher-risk and the
other for lower-risk subpopulations);
2. different advisories for different lakes
(dozens in total);
3. lake-by-lake recommendations on _ the
maximum number of ogaa (walleye) meals
to consume per month;
4. a warning to adjust the number of ogaa
meals per month depending on the size of
the portions consumed;
5. a suggestion to bag and label ogaa, before
freezing, according to size and lake of
origin; and
6. a recommendation to avoid certain other
fish species altogether.
The Advisory shows how, for American Indians who
consume large quantities of self-caught fish, avoiding
methylmercury overexposure requires navigating
complexities that most Americans cannot even
imagine contending with in their daily lives.
Finally, and most fundamentally, for many tribes,
adhering to fish advisories necessarily entails a
drastic and unacceptable curtailment of their
traditional reliance on fisheries. As explained more
fully below, many American Indians catch and
13
consume fish because it is central to their tribal
identity and often is essential for their survival.
Indians who rely on fish as a mainstay of their
culture and diet do not have an easy option of eating
less fish and switching to other food sources. In
comments to EPA on the proposed MATS Rule, tribes
warned of the profound cultural loss and dietary
impact that would result from tribal members’
compliance with fish advisories. See, e.g., MATS Rule
cmt. of Little River Band of Ottawa Indians at 106,
158. Accordingly, these and _ the _ other
aforementioned comments underscored for EPA the
deep, inter-related impacts on American Indians’
health, culture, and subsistence from EGU mercury
emissions.
B. Mercury Emissions Harm Indian Culture
Methylmercury contamination threatens
traditional Indian lifeways — lifeways that make
individual tribes distinct as a people. For many
tribes, fishing and fish consumption are important
social practices, handed down from generation to
generation. Various tribes have described fishing
and fish consumption as “central” and “essential” to
their cultural identity. See, e.g., MATS Rule cmt. of
FCPC at 5 (fishing is “essential to our individual and
Tribal way of life”). See also MATS Rule cmt. of
GLIFWC at 1 (“Fishing and fish consumption are
central to Chippewa culture.”); Tribal Air
Resources J. vol. VI (2014) at 17 (fishing is “deeply
rooted in [Lac Courte Oreilles] culture”), available at
http://www4.nau.edu/itep/ntaa/tribal-air-programs/
docs/2014_TribalAirResourcesJournal.pdf.
The following passage shows how important
fishing and fish consumption can be for tribal culture:
14
[T]he Ojibwe peoples understand themselves to
have a responsibility to continue to fish and to
consume fish Fishing and fish consumption
are integral components of the traditional and
ceremonial activities at the heart of Ojibwe
culture Fishing and eating fish provide
important occasions for the intergenerational
transfer of knowledge (including ecological,
historical, and social knowledge) that forms a
central part of the inheritance of each succeeding
generation.
O’Neill, supra, at 510 (citing Letter from James H.
Schlender, Exec. Adm’r, GLIFWC, to EPA (June 29,
2004) at 2, and Sue Erickson, Doing It Right: A Boy,
His Teachings and His Net, Mazina’igan 12-13
(2004)). See also Allison M. Dussias, Spirit Food and
Sovereignty: Pathways for Protecting Indigenous
Peoples’ Subsistence Rights, 58 Cleveland St. L. Rev.
273, 333-41 (2010) (discussing fishing and other
subsistence activities as “bridges” between tribal
members and across generations and time).
Methylmercury contamination of fish threatens to
disrupt time-honored practices that define many
tribes’ cultures. One tribe has poignantly described
the dilemma facing it and its members as follows:
[T]he Tribe and its members are left with a
Hobson’s choice of ingesting materials that may
ultimately injure Tribal members’ health, or
[forgoing] cultural practices that are essential to
our individual and Tribal spiritual well-being and
way of life.
MATS Rule cmt. of FCPC at 5. Another tribe has
explained the impact of methylmercury
contamination as follows:
15
[T]here are many Tribal families that no longer
engage in cultural practices associated with
fishing, and are thus not passing these traditions
to new generations of Tribal members. The loss of
our cultural ceremonies, language, and songs
associated with fishing represents a significant
impact on our Tribe, and results in permanent
loss of the culture which defines our Tribe.
O’Neill, supra, at 497 (quoting Letter from
William W. Phillips, Tribal Chief, Aroostook Band of
Micmacs, to EPA (Apr. 20, 2004)).
In comments to EPA both before and after the
MATS Rule’s proposal, tribes repeatedly stressed
concerns about methylmercury’s impact on American
Indian culture and traditions. In 2010 and 2011,
EPA met with tribes pursuant to Executive Order
13175, 65 Fed. Reg. 67249 (Nov. 9, 2000), which
provides for agency consultation with tribes early in
the process of developing a regulation that has tribal
implications. Id. at 67251. The tribes that EPA met
with included the Upper Sioux Community of
Minnesota, the Moapa Band of Paiutes, the FCPC,
the Standing Rock Sioux Tribal Council, and the
Fond du Lac Band. 76 Fed. Reg. at 25087. During
those meetings, tribes expressed “particular concern”
to EPA about several matters, one of which was “the
cultural impact of impaired water quality.” Jd. As
the NTAA later elaborated in written comments to
EPA, Indian cultural activities “are often dependent
on the purity of waters , many of which have
become tainted by mercury exposure.” MATS Rule
cmt. of NTAA at 2.
In other written comments to EPA, tribes and
inter-tribal organizations likewise emphasized
cultural concerns. GLIFWC described
16
methylmercury contamination as a “serious threat” to
“traditional lifeways.” MATS Rule cmt. of GLIFWC
“a © The FCPC lamented the impact of
methylmercury on fishing in one of the Tribe’s most
spiritually significant waters, Devil’s Lake.! MATS
Rule cmt. of FCPC at 5. The Fond du Lac Band cited
the deleterious effect of mercury deposition on the
Tribe’s “water based culture.” MATS Rule cmt. of
Fond du Lac Band at 2. And the Little River Band of
Ottawa Indians indicated that American Indians’
cultural concerns extend not only to fish, but also to
fish-eating birds and mammals, whose health is also
adversely impacted by methylmercury, and whose
well-being is a matter of cultural significance for
many Indians. See MATS Rule cmt. of Little River
Band of Ottawa Indians at 157. Collectively, these
comments emphasized for EPA that American
Indians face serious and, perhaps, unique cultural
threats as a result of EGU mercury emissions.
C. Mercury Emissions Harm Indian
Subsistence
Since time immemorial, Indians in many parts of
the country have been a fishing people: fish has been
1 The example of Devil’s Lake illustrates how tribes are often
connected to particular waters for cultural, spiritual, or other
reasons and cannot simply move their fishing to another
location. As the FCPC explained in its comment:
Devil’s Lake has special significance both culturally and
spiritually to FCPC and its membership [The]
significance stems from the Tribe’s belief that Devil’s Lake is
bottomless and is connected by underwater tunnels to other
water bodies For centuries, the Tribe has used Devil’s
Lake for fishing to fulfill our responsibilities in the
natural world.
MATS Rule cmt. of FCPC at 5.
17
a “great staple of their diet and _ livelihood.”
Washington v. Wash. State Commercial Passenger
Fishing Vessel Ass’n, 443 U.S. 658, 665 n.6 (1979).
Treaties with the United States reserved tribes’
aboriginal rights to take fish throughout their fishing
areas. See, e.g., Minnesota v. Mille Lacs Band of
Chippewa Indians, 526 U.S. 172, 200 (1999). The
exercise of those age-old fishing rights was “not much
less necessary to the existence of the Indians than the
atmosphere they breathed.” United States v. Winans,
198 U.S. 371, 381 (1905). Courts have continued to
uphold the vitality of Indian fishing rights to this
day. See, e.g., Mille Lacs Band, 526 U.S. at 200;
Grand Traverse Band of Ottawa & Chippewa
Indians v. Dir., Mich. Dep’t of Natural Res., 141 F.3d
635, 639 (6th Cir. 1998); Lac Courte Oreilies Band of
Lake Superior Chippewa Indians v. Voigt, 700 F.2d
341, 365 (7th Cir. 1983); United States v. Adair,
723 F.2d 1394, 1409-10, 1414 (9th Cir. 1983) (treaty-
reserved right to take fish impliedly reserves water
necessary to fulfill that purpose).
Moreover, today, as in the past, fishing is often
“critical” for tribe members’ survival. MATS Rule
cmt. of Little River Band of Ottawa Indians at 2. As
GLIFWC observed in its comment on the proposed
MATS Rule:
Ogaa [walleye] and other fish represent a
significant subsistence food for _ tribal
communities. During the 2011 spring spearing
and netting season alone, GLIFWC member tribes
harvested nearly 70,000 ogaa (approximately
135,000 pounds) from inland lakes
MATS Rule cmt. of GLIFWC at 2. Subsistence
fishing endures for important cultural reasons, as
described above, and also because it frequently is a
18
matter of basic survival, such as when tribe members
“are remotely located and fish is the major food
source available to them.” O’Neill, supra, at 510 n.71
(quoting Letter from Norm W. Deschampe, President,
The Minnesota Chippewa Tribe, to Michael Leavitt,
Adm’r, EPA (Apr. 28, 2004)).
In view of the critical importance of fish as a food
source for many American Indians, it is hardly
surprising that tribes emphasized subsistence
concerns to EPA during the development of the
MATS Rule. At the aforementioned meetings
pursuant to Executive Order 13175, tribes expressed
“particular concern” to EPA about “the impact [of
mercury deposition] on subsistence lifestyles for
fishing communities.” 76 Fed. Reg. at 25087. That
very concern was echoed later, in the written
comments submitted to EPA by tribes and inter-
tribal organizations on the proposed MATS Rule.
See, e.g., MATS Rule cmt. of FCPC at 3 (citing the
Tribe’s “sustenance way of life, which includes a
heavy reliance on fish”). As the NTAA stated in its
written comment, “[s]ubsistence activities on which
Tribes depend for their food, such as . fishing,
have been adversely affected by the deposition of
mercury onto Tribal lands and into their water
bodies.”2 MATS Rule cmt. of NTAA at 2. Those
2 In addition to harming Indian health, culture, and
subsistence, mercury emissions harm Indian economies. During
the aforementioned meetings between EPA and tribes, one of
the matters about which tribes expressed “particular concern”
was “the economic impact [of mercury deposition] on tourism.”
76 Fed. Reg. at 26087. The concern was that mercury
contamination in tribal lakes, rivers, and streams would deter
recreational! fishing and tourism — a major source of revenue for
many tribes. See, e.g., MATS Rule cmt. of FCPC at 6. Tribes
also emphasized their economic concern in written comments to
19
communications emphasized to EPA the significant
negative impact on many American Indians’ food
sources from EGU mercury emissions.
Il. The MATS Rule Will Benefit American
Indians Significantly
In developing the MATS Rule, EPA considered
and addressed the substantial impact of EGU
mercury emissions on American Indians. Consistent
with Congress’s expressed intent in Section 112 to
protect “sensitive populations” from mercury
exposure,? EPA examined each of the categories of
harm to American Indians discussed above, and
developed a rule that will abate them significantly.
Due to data limitations, EPA did not calculate a
dollar value for many of the benefits of the MATS
Rule. However, that does not mean that the
mercury-related benefits of the rule are, as
petitioners and their amici contend, “minimal,”
“negligible,” and “de minimis.” Mich. Br. at 46; U.S.
Chamber of Commerce Br. at 13; Cato Inst. Br. at 5.
Rather, for American Indians and others, the
EPA. See id.; see also MATS Rule cmt. of Fond du Lac Band at
1. Through these communications, the tribes stressed to EPA
that, for tribes dependent on recreational fishing and tourism,
the economic cost of not regulating mercury emissions can be
significant.
8 42 U.S.C. § 7412(n)(1)(C) (requiring a study of the health
effects of mercury, with consideration of fish consumption by
“sensitive populations”). EPA’s consideration of the impact of
continued, unregulated mercury emissions on American Indians
was consistent not only with Section 112, but also Executive
Order 12898, 59 Fed. Reg. 7629 (Feb. 16, 1994), which, for more
than 20 years, has required the Agency to address any
disproportionately high and adverse environmental effects of its
policies on minority populations, with the goal of achieving
environmental protection for all communities. See id. at 7629.
20
mercury-related benefits of the rule are substantial
and critically important.
EPA’s reliance on the disproportionate mercury-
emissions-impact on American Indians can be seen
from the Agency's Revised Mercury Risk Technical
Support Document (TSD). EPA’s decision that it is
“appropriate and necessary” to regulate EGUs — and
hence to issue the final MATS Rule — was based in
part on the Revised Mercury Risk TSD. 77 Fed. Reg.
at 9362. EPA’s goal with the TSD was “to determine
whether mercury emitted from U.S. EGUs poses a
potential public health hazard.” Revised Mercury
Risk TSD at viii. To make that determination, EPA
modeled mercury exposure based on a “hypothetical
female subsistence consumer” scenario. Id.
In developing the “hypothetical female subsistence
consumer” scenario, EPA relied on data regarding
“those self-caught fish consumers with the highest
intake rates and therefore, those who will experience
the greatest |[mercury] exposures at a _ given
watershed.” Revised Mercury Risk TSD at 8. EPA
“used peer-reviewed study data to characterize
consumption rates for a variety of high-consuming
fisher populations,” including “Great Lakes Tribal
populations.” Jd.; see also id. at 32, 40. Based on
that data, EPA developed a “Tribal scenario” of risks,
in addition to the national-level “hypothetical female
subsistence consumer” scenario. See id. at 32, 80.
EPA concluded that “U.S. EGU-attributable risks for
the Tribal scenario are similar to those for the typical
female subsistence fish consumer scenario.” Id. at
111. In other words, the risk estimates underlying
the final MATS Rule provide, in EPA’s words,
“coverage,” id. at 83, for the methylmercury risks
faced by high-fish-consuming tribal populations for
21
which peer-reviewed data is available.
The foregoing by itself indicates that the MATS
Rule will lead to major benefits for American Indians,
since the rule accounts for many tribes’ high levels of
fish consumption. However, there is still other
evidence in the record that demonstrates that the
rule will address the health, cultural, and other
impacts on tribes as a result of EGU mercury
emissions. In documents in the record, EPA:
e explained that the Revised Mercury Risk TSD is
based on a high-fish-consuming scenario that does
not assume compliance with fish consumption
advisories, which, as noted above, are sometimes
ineffective, Resps. to Cmts. vol. 1 at 167;
e rejected several commenters’ suggestion that
there has been a downward trend in blood
mercury levels, relying, in part, on a 2006 study
showing high blood mercury levels among
American Indians, id. at 149 (citing Hightower,
supra);
e indicated that the MATS Rule is likely to have a
beneficial economic impact related to recreational
fishing and tourism, including in Indian country,
Resps. to Cmts. vol. 2 at 652; and
e explained that the rule will benefit American
Indian communities with “subsistence lifeways,”
id. at 681, as well as fish-eating birds and
mammals, 77 Fed. Reg. at 9424.
Overall EPA concluded that the MATS Rule will
reduce EGU emissions of mercury, and that reducing
those emissions will result in reduced mercury
deposition in many highly impacted watersheds. See
RIA at ES-1; 77 Fed Reg. at 9305, 9356. Further,
22
EPA concluded that some American Indian
subpopulations could receive an especially great
benefit from the MATS Rule due to their fish
consumption patterns. Resps. to Cmts. vol. 2 at 623,
652 (citing sensitivity analysis); see also Revised
Mercury Risk TSD at 87-91 (sensitivity analysis).
EPA decided that it could not calculate a dollar
value for certain “important” mercury reduction
benefits of the MATS Rule. RIA at ES-1. The
Agency’s estimate of the rule’s mercury reduction
benefits — $4 to $6 million using a 3% discount rate —
reflects only the benefit for expected lifetime earnings
of avoiding lost IQ points. Id.; see also id. at 4-45 to
4-57; 77 Fed. Reg. at 9428. EPA concluded that the
data available on IQ loss could be “readily monetized
for use in cost-benefit analysis.” RIA at 4-34. For
other mercury reduction benefits, however, EPA
concluded that data _ limitations prevented
monetization. See id. at ES-1 to ES-2; ES-9. The
benefits which EPA could not monetize due to data
limitations included, among others, the
aforementioned benefits of mercury reduction related
to wildlife and recreational fishing, as well as
cognitive, neurological, and other health benefits
other than avoided IQ loss. See Resps. to Cmts. vol. 2
at 652; RIA at 4-35, 4-64 to 4-65.
In addition to the benefits related to health,
wildlife, and recreational fishing, EPA did not
monetize numerous other mercury reduction benefits
of the MATS Rule for American Indians, including
the cultural benefits of preserving traditional
subsistence lifeways. EPA cautioned that such un-
monetized benefits should not be deemed small or
unimportant simply because they could not be
monetized, explaining that the value of the
23
unquantified health and environmental benefits
alone could be “substantial.” RIA at ES-9.
Accordingly, petitioners and their amici are wrong
in asserting that the mercury reduction benefits of
the MATS Rule are “minimal,” “negligible,” and “de
minimis.” Mich. Br. at 46; U.S. Chamber of
Commerce Br. at 13; Cato Inst. Br. at 5. That
disparaging assessment fails to appreciate the
serious and disproportionate impact of EGU mercury
emissions on American Indians, and the critical
health, cultural, and other benefits that tribes and
their members stand to gain as a result of mercury
reduction under the MATS Rule.
Ill. Congress Did Not Require EPA to Assess
the Monetary Value of Indian Health,
Fishing Rights, and Traditional Ways of Life
The crux of petitioners’ argument is that the
fifteen-year process by which EPA made the
threshold decision to regulate mercury emissions was
too hasty because EPA should have undertaken a
lengthy process of assessing and weighing the costs
and benefits of regulating. As shown above, EPA did
consider the benefits of regulating, including the need
to protect American Indian health, fishing rights, and
traditional ways of life. Petitioners do not
acknowledge these benefits, however, for the sole
reason that EPA did not put a price on them. See
Mich. Br. at 4 (identifying only monetized health
benefits from the MATS Rule); Nat’l Mining Ass’n Br.
at 1 (same); Utility Air Regulatory Group Br. at 1
(same). As EPA explained, the “calculated benefits
are a small subset of the benefits of reducing
[mercury] emissions” under the MATS Rule. 77 Fed.
Reg. at 9428. Ignoring EPA’s consideration of the
demonstrated benefits of the rule, petitioners
24
apparently would require that EPA monetize all costs
and benefits in making the initial determination
whether regulation is “necessary and appropriate.”
That argument is belied by the fact that another
provision of the Clean Air Act, 42 U.S.C. § 7412(d)(2),
explicitly requires EPA to consider “the cost of
achieving emission reduction” in setting emission
standards. No similar language requires EPA to
consider costs or, as petitioners seem to suggest,
compare costs and benefits, in making the initial
decision whether to set an emissions standard.
If petitioners were right, the crucial protections
provided by the MATS Rule must be delayed by an
untold number of years or perhaps indefinitely. Such
a delay would be necessary so that EPA can go on the
fool’s errand of attempting to put a dollar value on
the health of American Indians so that it could be
compared to the costs of regulation. EPA would also
need to place a dollar value on tribal fishing rights.
And EPA would need to calculate the value of
American Indian traditional ways of life. Nothing in
the text of the Clean Air Act remotely suggests that
EPA is required to assign a dollar value to American
Indian health, fishing rights, and traditional cultures
in making the threshold decision whether regulation
of mercury emissions is “appropriate and necessary.”
The benefits of the mercury rule to American
Indians are fundamentally different in kind than the
economic costs the rule imposes on petitioners and
cannot be compared on the same scale. Providing
these benefits fulfills the government’s duties to
American Indians, including the obligation to protect
Indian health, see, eg., 25 US.C. § 1602; the
obligation to protect tribal fishing rights, see Cohen's
Handbook of Federal Indian Law § 18.02 (2012 ed.)
25
(discussing the variety and scope of treaty-protected
fishing rights); Seminole Nation v. United States,
316 U.S. 286, 296-97 (1942) (declaring that “fijn
carrying out its treaty obligations with the Indian
tribes the Government is something more than a
mere contracting party [I]t has charged itself
with moral obligations of the highest responsibility
and trust.”); and the obligation to protect traditional
American Indian ways of life, see, e.g., Menominee
Tribe of Indians v. United States, 391 U.S. 404, 406
(1968) (describing the “essence” of the treaty as the
protection of the tribe’s ability to “maintain their
way of life which included hunting and fishing”). At a
minimum, fulfillment of the United States’ solemn
and perpetual obligations to the tribes cannot be
conceived as a mere pecuniary benefit that should be
weighed against the economic costs that regulation
imposes on petitioners.
Even if protection of American Indian health,
fishing rights, and traditional cultures could be
understood as a simple benefit of the mercury rule,
rather than the fulfilment of the United States’
obligations to Indian tribes, the value of those
benefits defies easy calculation. Under what
principle was EPA supposed to assess the value of the
health of American Indian subsistence fishermen?
How was EPA supposed to calculate the value of
treaty-protected fishing rights? What principle could
EPA employ to assess the value of traditional Indian
cultures? If petitioners are correct that determining
whether regulation is “appropriate and necessary”
requires EPA to consider only monetized costs and
benefits, EPA would be required not merely to put a
dollar figure on tribal health, subsistence, fishing
rights, and cultural rights, but would first be
26
required to develop an acceptable methodology for
doing so. Yet even proponents of rigorous cost-benefit
analysis have recognized that interes.s like those at
issue here cannot readily be monetized. See, e.z.,
Cass R. Sunstein, The Limits of Quantification,
102 Calif. L. Rev. 1369, 1380-85 (2014).
The text of the Clean Air Act makes clear that
Congress did not envision that EPA do the impossible
and undertake a balancing of incommensurable costs
and benefits before making the initial decision to
regulate hazardous air pollutants. While Congress
directead EPA to consider costs in the later
determination of setting emissions’ standards,
42 U.S.C. § 7412(d)(2), Congress instructed EPA to
consider “hazards to public health,” not costs, in
making the threshold decision whether regulation is
“appropriate and necessary.” 42 U.S.C.
§ 7412(n)(1)(A). EPA reasonably construed this
provision not to require a balancing of benefits and
costs. Given the voluminous evidence that mercury
emissions pose severe hazards to public health,
including grave hazards to American Indian
communities, regulation of those emissions
undoubtedly is appropriate and necessary.
27
CONCLUSION
For the foregoing reasons, the judgment of the
Court of Appeals should be affirmed.
Respectfully submitted,
JARED A. GOLDSTEIN KEVIN LYSKOWSKI
PROFESSOR OF LAW Counsel of Record
ROGER WILLIAMS 1300 PENN. AVE., NW, 190-321
UNIV. SCH. OF LAW WASHINGTON, DC 20004
BRISTOL, RI 02809 Tel: (240) 506-5183
klyskowski@post.harvard.edu
MARCH 4, 2015
RIYAZ KANJI
KANJI & KATZEN P.L.L.C.
303 DETROIT ST., STE. 400
ANN ARBOR, MI 48104
PHIL KATZEN
JOHN SLEDD
KANJI & KATZEN P.L.L.C.
401 2ND AVE. S., STE. 700
SEATTLE, WA 98104
ELIZABETH KRONK
WARNER
ASSOC. PROFESSOR OF LAW
THE UNIV. OF KANSAS
SCH. OF LAW
LAWRENCE, KS 66045
JOHN DOSSETY
COLBY D. DUREN
REBECCA HOWLETT
NATIONAL CONGRESS OF
AMERICAN INDIANS
1516 P St., NW
WASHINGTON, DC 20005
RICHARD A. GUEST
NATIVE AMERICAN RIGHTS
FUND
1514 P St., NW, STE. D
WASHINGTON, DC 20005
ERICK ARNOLD
BAD RIVER BAND OF
LAKE SUPERIOR
CHIPPEWA TRIBE
72682 MAPLE ST.
ODANAH, WI 54861
SEAN COPELAND
FOND DU LAC BAND OF
LAKE SUPERIOR
CHIPPEWA
1720 BIG LAKE RD.
CLOQUET, MN 55720
KEKEK JASON STARK
LAC COURTE OREILLES
BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS
13394 W. TREPANT* RD.
HAYWARD, WI 54843
DAVID UJKE
RED CLIFF BAND o1 LAKE
SUPERIOR CHIPPEWA
88385 PIKE RD.
BAYFIELD, WI 54814
HOWARD BICHLER
ST. CROIX CHIPPEWA
INDIANS OF WISCONSIN
24663 ANGELINE AVE.
WEBSTER, WI 54893
COLETTE ROUTEL
PROFESSOR OF LAW
WILLIAM MITCHELL
COLLEGE OF LAW
875 SUMMIT AVE.
ST. PAUL, MN 55105
ROBERT C. LOTHROP
COLUMBIA RIVER INTER-
TRIBAL FISH
COMMISSION
700 NE MULTNOMAH ST.
STE. 1200
PORTLAND, OR 97232
Appendix
Mercury Fish Advisory for Bad River Band
of Lake Superior Chippewa Tribe
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SLANO L, RUSK OST LAND | BLACK OAA \
man = ROUND | OB8T CANOE | ;
uc »t iar rERM t fr -
HrA CO F PIE |
DUNN 1.0 COMBE SQUAW J
| VA BERG | TURNER erate
| OnRRORS | ‘
TAINTER 4 :
-
t LAC SAULT DORE at ourRor
NG |
fia | RB \
HEMLOCK = DAIRYLAMD RE SERVO
| When Cleaning Ogaa
Recommended Maximum Number of Ogaa Meals per Month for Lakes Harvested by Bad River
SORTING AND LABELING OG44
PRIOR TO FREEZING
USING THIS CHART TO FIND SAFER GHGOONH
MAJUMUM NUMBER OF MEALS PER MONTH
Actvice is for all lakes combined. For example, if you cat four meals in a month
© Put ogas 20 inches in bags | | from green lakes you should not eat any other meals of ogaa in that month
labeled “under 20 inches.” |
Lo
« Put ogaa over 20 inches in bags labeled Meal size is based on 8 ounces. An average 19 inch ogaa wii] have 8 ounces of
‘over 20 mnches.” meat. lf your mea) suze is larger you should eat fewer meals of ogaa. If it u
+ Label bags with the lake name j | nai yum cum cap eave eae ot ages
* Follow the advice below for maximum OTHER GIUGOONH |
number of meals per month Gugoonh such as muskellunge, largemouth bass, stnallmouth besa, and northern
| | ptke will have more mercury than gtigoonh such as lake whitefish, herring.
bluegill. sunfish, crappie or perch. Try to choose safer gtigoonh |
Warner of eee aman
redbeanrg chedbeanng Waren of peyord
ea, “mene rams | pedeares
men 15 and years and
Gap Se oxen PMGTON O88 | nen 15 and
—— 1 = than 15
Mame | Maximum j ee
qumber of number of Maamnun Maumun
| Meats per meets per number of nurnoer of
_ LAKE COUNTY | month | monn nests pe meats per
| ANNABEL. E | VILAS [2] AKE | COUNTY | month _
BEAR. __ | ASHLAND r2 | LONG L_—__ | PRICE oe eet
ee , ee ee oe
[BONDOC [DOUGLAS | TON [MLAS 2
BUTTERNUT L [price | 2 MAMIE L fvuas———__|
CHAIN | RUSK =. ‘MiIDOLE EAU CLAIREL [BAYFIELD | I
CLAM RF BURNETT [MILLE LACS [MILLE LACS |
CONNORS | SAWYER MINERAL | 2
| CRAB | t VRAS [NTURTLEL AS 2
[DAIRYLAND RESERVOIR | RUSK " WAMEKAGON | T BAYFIELD
ONAMOND | BAYFIELD " NELSON L [SAWYER
DOWLING | TOOUGLAS " OXBOW | Tvs 2)
OUROY | PRICE PREL | PRICE |
ECHO L | IRON PINEL [RON 2
ENGLISH | | ASHLANO | PRESQUE ISLE. CHAIN | VILAS- 2 | os
FISHER | IRON ” RAINBOW FL | ONEIDA 2
' FOREST L ViLAS- [. TAYLOR P|
| GORDON | [ASHLAND _ROUNO [PRICE 12]
| HARRIS | [vias 5 TURTLE L [vuas 12)
_ HEMLOCK | | BARRON , SISHOWIT | | BAYFIELD | 24
"HIGH | VAS _ SOLBERG | Terce 2]
| HOLCOMBE FL | CHIPPEWA | SPIDER | IRON 12 |
| ISLAND | | RUSK SQUAW L [VILAS_ 2
_t GALILEE | ASHLAND _ TAINTER | OUNN __|
_CMINNE SUING | DOUGLAS TEAL [SawyeR —] i2
"LOF THE FALLS [RON | TENDERFOOT L [VAs
"COWEN BAYFIELD TRUCOEL IRON 2)
TL WISSOTA | CHIPPEWA [TURNER( | PRICE + |
[ LAC SAULT DORE [PRICE _ | TURTLE FLAMBEAU Fi | IRON 2
LONG 1 | CHIPPEWA _ UPPER EAU CLAIRE | BAYFIELD
LONG | IRON WHITEFISH L d | DOUGLAS E
| Rusk Mercury can damage the nervous system, especially the brain. Fetuses and baines are
| trummung or cooking
—
For many nat.ve people, giigoonA are part of a tradiponal and healthy det. If you rely on
giigoonh, >hoose safer giigoonh with lower levels of mercury by following the advice on thus
map
RISKS AND BENEFITS
the most at mak because they nervous systems are rapidly developing. Chuldren exposed to
unsafe levels while in the womb have been found to expenence dels yed development in
walking and talking, even though the mother was not affected. Mercury cannot be removed by
Benefit. Eating even as few as two to three meals of gugoonh a month may reduce your risk
ot death due to heart disease
If \ow have qaestions about finding safer ogaa. call GLIFWC at 1-715-682-6619.
lo leara more about mercury in ogaa, visit GLIFWC's website at www glifwe.org Sercary/mercury himi
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.