EPA issues rule critics say threatens power plant pollution regulation

The Environmental Protection Agency (EPA) on Thursday finalized a decision that critics say threatens regulations designed to limit pollution from power plants. 

The finalized rule doesn’t roll back the Mercury and Air Toxics Standards (MATS). Instead, it undermines the rule by preventing the agency from weighing certain “co-benefits” in its justification for the standards. 

The current and previous administrations have very different interpretations of the same pollution standards; an Obama administration analysis said benefits like reducing other toxins from power plants would save consumers as much as $90 billion, but the Trump administration said the rules would only save between $4 million and $6 million.

The Trump administration also argues that power producers will spend up to nearly $10 billion on adding pollution controls, so the costs will outweigh the benefits.

EPA Administrator Andrew Wheeler argued that the Trump administration’s approach was better because it only considered “targeted” pollutants like mercury rather than the co-benefits from reductions of additional pollutants. 

“Under the Obama-era approach, the cost-benefit scales are set so any regulation could be justified regardless of costs,” he told reporters on a Thursday call.

Critics have expressed concern that the lower numbers remove the mercury standards’ legal underpinnings, making the power plant regulations more vulnerable to court challenges. 

“All that Wheeler is doing is fudging the numbers to give polluters a tool to challenge MATS in court,” Sierra Club Executive Director Michael Brune told reporters ahead of the official announcement. 

“Andrew Wheeler’s attempt to undercut the basis of the Mercury and Air Toxics Standards reminds us that not even a global pandemic will stop him from being a coal lobbyist in an EPA administrator suit,” Brune added, referring to Wheeler’s previous employment.

Mercury has been found to damage lungs and the brain, and is linked with developmental disorders.

The Trump EPA has argued that the Obama administration had inflated the co-benefits in its past analysis, leaving companies spending more to fight hazardous air pollutants than society would benefit from the decrease in pollution.

Wheeler said in a statement that agency’s action showed that it was “following the law while making reasonable regulatory decisions that are fully protective of the public health and environment.” 

However, Clinton administration EPA chief Carol Browner told reporters Thursday that she believes the change will “undermine how the EPA considers science and evaluates economic benefits of regulations in the future” if a court upholds this type of cost-benefit analysis. 

Wheeler told reporters that the cost-benefit analysis is “unique” to this particular rule, but that the agency is working on a broader cost-benefit rule for all Clean Air Act regulations. 

He also pledged to defend the MATS standard in court, saying “we defend all of our rulemakings.”

Courts may not be inclined to keep regulations on mercury if they cost more than they save.

The Administrative Procedure Act requires sound reasoning to show that regulations have logical rather than just political backing — otherwise they risk being thrown out as arbitrary and capricious. 

Those hoping to defend the standards may have to take issue with the EPA’s analysis, something the agency’s own Science Advisory Board has already done.

The SAB criticized the revision late last year, saying the agency had ignored the board’s advice. 

The review by the SAB lists a number of scientific studies that back up the critique of economists, arguing that the EPA failed to consider the wide health benefits that would result from better controlling mercury pollution and underestimated the neurological damage that comes from being exposed to it.

Updated: 6:15 p.m.