Trump shows his cards on environmental protections — or a lack thereof

The last month has been an extraordinary one not just because of the COVID-19 crisis but because the Trump administration has now shown all its cards in its hypocritical crackdown on environmental protection. In three important proceedings, the Environmental Protection Agency has revealed unequivocally that it will employ any methodology at all to justify rolling back environmental regulations, even if the effect could be harmful and put lives at risk. It has brazenly used opposite arguments in different proceedings, invoking whichever side happens to help it achieve its goals, without even acknowledging or explaining its contradictory approaches.  

The analytical failings of the Trump administration’s deregulatory push — and the extent to which the courts have noticed these failings and struck down its actions — have received considerable attention during the last three years. But none of the prior moves illustrates the intellectual bankruptcy of its approach as well as the last month’s actions.

Earlier this month, EPA withdrew the finding that it is “appropriate and necessary” to regulate emissions of mercury and other hazardous air pollutants from power plants, using egregious logic. While it left in place the existing Mercury and Air Toxics Standards, this new withdrawal of the finding weakens the legal footing of these standards and opens the door to lawsuits challenging them. 

It also poses a significant roadblock to a future strengthening of the pollution safeguards. EPA acknowledges the standards save thousands of lives each year and produce quantified benefits of $36 billion to $89 billion annually, as well as significant unquantified benefits. It further admits that those benefits are far larger than the rule’s costs — $9.6 billion, according to a 2012 estimate that is now widely considered as too high. Yet the agency nevertheless claims that regulating mercury isn’t “appropriate.” Despite the large net benefits, EPA determines that the benefits of the rule don’t justify its costs. It does so by arguing that the bulk of the quantified benefits should be excluded from the analysis because they result from reduced particulate matter emissions, an indirect benefit of the regulatory measure, rather than from the direct purpose of the statutory provision under which the regulation was promulgated: reduced emissions of mercury and the other pollutants. (The EPA also waves away the direct benefits that had not been quantified when the standards were promulgated in 2012, even though many of these benefits can now be quantified and are extremely large.)

In excluding the indirect benefits — also known as co-benefits — from its analysis, the agency is acting inconsistently, not only with the consensus views of economists, but also with its own guidelines on cost-benefit analyses, with the regulatory practices of administrations of both parties over four decades and with guidance from the Office of Management and Budget adopted during the George W. Bush administration. As explained below, it is also acting inconsistently with its own actions over the last month.

The EPA says that while the indirect benefits of regulating power plants should be excluded, the indirect costs should be taken into account. Its reason for putting this heavy thumb on the scales against protecting public health is that benefits can be disaggregated into those attributable to hazardous air pollutant reductions and co-benefits attributable to reductions in other pollutants, while “costs cannot similarly be disaggregated.” This argument makes no sense at all. 

The direct costs are those borne by the power plants that are the subjects of the regulation. The indirect costs are adverse impacts, if any, on broader sectors of the economy. Not only can those two types of costs be disaggregated, but they routinely are disaggregated in the agency’s regulatory impact analyses. EPA’s argument that the indirect consequences of regulation should be taken into account if they are negative and should be ignored if they are positive is a serious affront to rationality and is flatly inconsistent with the primary mission of the agency, which is to protect the public health of Americans.

As bad as EPA’s analysis is when looked at in isolation, the irrationality becomes starker in light of two other significant EPA proceedings completed this month.  

EPA used a directly contradictory approach, relying almost exclusively on co-benefits, when it justified its major rollback of the Clean Car Standards. In rolling back these standards, which limit the greenhouse gas emissions of cars and light trucks, the agency even used “safety” in the title of the rule (the “Safer Affordable Fuel Efficient (SAFE) Vehicles Rule”). But any purported safety changes are co-benefits rather than direct benefits. EPA has no authority to regulate vehicle safety, while the National Highway Traffic Safety Administration, which jointly promulgated the rule with EPA, did so under a statutory provision designed to improve fuel economy, not safety. 

Putting these two regulatory proceedings together, the message that the Trump administration sends is that co-benefits should be taken into account if they justify weakening a rule but should not be considered if they justify maintaining a safeguard or making it more stringent.  

EPA’s other justification for ignoring the life-saving reductions of particulate matter that result from mercury regulation was that the agency could address particulate pollution directly, by regulating it through other provisions of the Clean Air Act. But given the opportunity to issue such regulations, it has balked. Indeed, also last week, EPA ignored the advice of its own scientists and proposed not to strengthen the National Ambient Air Quality Standards for particulate matter, the most significant measure to control this deadly pollutant.  

Looking at these three proceedings, completed within weeks of one another, exposes the shameless analytic opportunism of the Trump EPA. It is willing to speak out of both sides of its mouth, relying on one argument in one proceeding and an opposite argument in a different one. The result is a slate of deregulatory actions that put thousands of lives at risk each year, cause serious adverse health impacts on many more, and impose net harms on the American people.  A heedless commitment to dangerous deregulation is the only logic that explains its actions.

Richard L. Revesz is the Lawrence King professor of law and dean Emeritus at the New York University School of Law, where he directs the Institute for Policy Integrity.