E.P.A. Proposes Rule Change That Would Let Power Plants Release More Dangerous Pollution
28th December 2018

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WASHINGTON — The Trump administration announced on Friday a plan designed to make it easier for coal-fired power plants, after nearly a decade of restrictions, to once again release into the atmosphere mercury and other pollutants linked to developmental disorders and respiratory illnesses.

The limits on mercury, set in 2011, were the first federal standards to restrict some of the most hazardous pollutants emitted by coal plants and were considered one of former President Barack Obama’s signature environmental achievements. Since then, scientists have said, mercury pollution from power plants has declined more than 80 percent nationwide.

President Trump’s new proposal does not repeal the regulation, known as the Mercury and Air Toxics Standards, but it would lay the groundwork for doing so by weakening a key legal justification for the measure. The long-term impact would be significant: It would weaken the ability of the E.P.A. to impose new regulations in the future by adjusting the way the agency measures the benefits of curbing pollutants, giving less weight to the potential health gains.

In announcing the proposed rule, the Environmental Protection Agency said in a statement that the cost of cutting mercury from power plants “dwarfs” the monetary benefits. The proposal, which the acting E.P.A. administrator, Andrew Wheeler, signed on Thursday, is expected to appear in the federal register in the coming weeks. The public will have 60 days to comment on it before a final rule is issued.

During his first year in office, President Trump signed executive orders declaring his intention to dismantle environmental rules. As his second year comes to a close, agencies have set the regulatory wheels in motion to weaken or repeal nearly a dozen Obama-era restrictions on air and water pollution or planet-warming emissions of carbon dioxide, including a plan to reduce the number of waterways that are protected from pollutants and another making it easier for utilities to build new coal plants.

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Reworking the mercury rule, which the E.P.A. considers the priciest clean air regulation ever put forth in terms of annual cost to industry, would represent a victory for the coal industry, and in particular for Robert E. Murray, an important former client of Mr. Wheeler’s from his days as a lobbyist. Mr. Murray, the chief executive of Murray Energy Corporation, personally requested the rollback of the mercury rule soon after Mr. Trump took office.

Yet the E.P.A. move also had its detractors within the industry. The vast majority of utility companies, which estimate they have already spent about $18 billion installing clean-air technology since the rule was imposed, have said the proposed changes are now of little benefit to them and have urged the Trump administration to leave the measure in place.

“There is nobody who operates power plants who is asking for the rule to go away,” said Jeffrey R. Holmstead, a partner at the law firm Bracewell who served as E.P.A. air chief under the second President George Bush. On Friday, Mr. Holmstead said the agency “managed to walk a very fine line” by revising a justification for the rule while leaving pollution protections in place.

The original rule required power plants to reduce emissions of mercury and other toxic pollutants by more than 90 percent over five years. Mercury is a neurotoxin that can damage the brain and nervous system in young children, leading to lower I.Q. and impaired motor skills. The Obama administration estimated that the measure would prevent as many as 11,000 premature deaths from asthma, other respiratory diseases or heart attacks.

Estimates like that, however, are at the heart of the current dispute. The federal government is required to take into account both the costs and health benefits when considering pollution regulations. Trump administration officials say the Obama E.P.A. inflated benefits and underestimated costs.

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The Obama administration found up to $6 million annually in health benefits directly from curbing mercury. But it further justified the regulation by citing an additional $80 billion in health benefits a year by, among other things, preventing the 11,000 premature deaths. That came not from curbing mercury itself but from the reduction in particulate matter linked to heart and lung disease that also occurs when cutting mercury emissions.

The Obama administration also broadly accepted that it’s difficult to put a specific dollar-figure on some health benefits — for instance, avoiding lost I.Q. points in infants (or other fetal harm), which has been linked to pregnant women eating mercury-contaminated fish. For that reason, the original rule argued against using a strict cost-benefit analysis to decide whether the regulation should be imposed, said Joseph Goffman, the executive director of Harvard Law School’s Environmental and Energy Law Program.

The new proposal fundamentally changes that approach. It would consider only the benefits that can be directly translated into dollars and cents.

The proposed rule recognizes that difficult-to-quantify benefits exist, but said “the administrator has concluded that the identification of these benefits is not sufficient, in light of the gross imbalance of monetized costs.”

Ann Weeks, senior counsel for the Clean Air Task Force, an environmental group, criticized the rule as “bean counting,” and said, “This is not tax law. This is public health benefits. It’s a very different calculus.”

Business groups also maintain the rule should count only the direct benefits of curbing the main pollutant in question, and not what are termed co-benefits, when considering the economic impact of a regulation. Co-benefits refers, for instance, to the fact that reducing mercury emissions also reduces emissions of unrelated pollutants, such as small particulate matter, that also come with a measurable health benefit.

The new proposal directs the E.P.A. to do just that. Should that plan ultimately go into effect, the cost to curb mercury would be calculated in a way that shows the costs outweighing the health benefits.

With the legal justification for the regulation thus weakened, experts said, the rule could more easily be overturned if challenged in court. Moreover, it could make it more difficult for future regulations to go into effect.

“There is a likelihood that this rule-making will be the administration’s flagship effort to permanently change the way the federal government considers health benefits,” said Janet McCabe, who ran the E.P.A.’s air office under Mr. Obama.

She said an overhaul of the mercury rule could result in utilities opting to no longer run pollution controls, despite having already installed them, because costs that are not federally mandated can no longer be passed on to ratepayers. “If that’s the case, we will see higher emissions of mercury, arsenic, acid gases and the particulate matters that are also captured along with those pollution controls,” Ms. McCabe said.

Mr. Wheeler, in a recent interview, dismissed the idea that utilities, having spent billions of dollars on pollution controls, would stop using them. “It’s not like people are going to start taking off their equipment and start putting mercury into the atmosphere,” he said.

He described the E.P.A.’s action as simply a response to a Supreme Court’s 2015 decision that said the Obama administration had failed to properly consider economic costs when they imposed the mercury rule and ordered a new cost-benefit analysis. The Obama administration complied and the rule was reinstated, but the coal industry again challenged the rule.

When the Trump administration came into office, the agency said it would no longer defend the Obama administration’s cost-benefit finding and would seek to rework the rule entirely.

Mr. Wheeler described the E.P.A.’s plan to reopen the mercury rule as an answer to the court and said he was not concerned by either the utility industry’s disinterest in seeing the rule reworked or the views of his former client, Mr. Murray. “We don’t answer to the utility industry,” he said. “We don’t answer to the coal industry. We answer to Congress and the courts, and the Supreme Court told us we didn’t get it right. We have to redo it. I’m going to follow the law, and I’m going to follow the Supreme Court.”

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Lisa Friedman reports on climate and environmental policy in Washington. A former editor at Climatewire, she has covered nine international climate talks. @LFFriedman

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