Just before the federal government shut down in the final days of 2018, the Environmental Protection Agency unveiled a proposed rule change that would alter how the federal government determines air pollutant regulation. The rule change would prevent the EPA from considering certain benefits — such as positive health outcomes — associated with reducing mercury levels during its cost-benefit calculations.
In a “more ideological than political” play, the Trump administration is choosing not to defend a former Obama-era policy decision that affects the regulation of mercury emissions from coal-fired power plants, according to Jeff Holmstead, a partner and leader of the environmental strategies group at the Washington, D.C.-based law firm Bracewell.
Celia Chen, director of the Dartmouth Toxic Metals Superfund Research Program, said that the rule — which currently limits emissions from industry — is effectively still in place, but the cost-benefit analysis process may undercount certain benefits associated with emission regulation if the proposal is approved.
The Dartmouth Toxic Metals Program is a National Institute of Environmental Health Studies Superfund Research program that specializes in studying air pollutants, primarily arsenic and mercury. Chen noted that the Dartmouth program is unique because it is perhaps the most involved in studying mercury, making it a notable contributor in the international mercury science field.
According to a policy brief provided to journalists and policymakers by the Dartmouth Toxic Metals Program in December, humans are primarily exposed to mercury in the U.S. by consuming freshwater and saltwater fish. The brief also notes that there is no threshold for methylmercury exposure below which neurological impediments are undetected. Brian Jackson, director of the trace element analysis core facility in the Dartmouth Toxic Metals Program, said that coal-fired power plants are “the major anthropogenic source of mercury” that the environment is forced to absorb.
Jackson added that methylmercury — a form of mercury produced by bacteria — is a neurotoxin that is especially harmful to infants and young children.
Chen said that eliminating the consideration of certain benefits — such as improved health outcomes — from the regulatory cost-benefit analysis makes the total benefits from an emission regulation weigh less against the costs and “potentially undermines the math showing that regulation is appropriate and necessary.” She added that the words “appropriate and necessary” have been the subject of litigation for decades.
However, Holmstead said what the administration is proposing has “no practical impact” on regulations currently in place.
“It’s essentially to make a symbolic statement,” he said.
Holmstead, who also led the EPA’s office of air and radiation from 2001 to 2005, said that the EPA has been dealing with air pollutant regulation since 1990 when Congress amended the Clean Air Act to specialize the regulations for 189 air pollutants classified as hazardous air pollutants, or HAPs. He noted that Congress called on the EPA to identify industrial processes that emit significant amounts of HAPs. Holmstead said that the EPA was supposed to examine the emissions, analyze the average emissions of the best 12 percent per industry — causing the least environmental harm — and mandate the rest of the industry to perform at that level.
Coal-fired electricity-generating power plants, however, were additionally subject to other regulations and subsequently convinced Congress that they should not also be subject to the HAPs requirements, Holmstead said.
Over time and through lots of litigation, the EPA was asked to determine if it was “appropriate and necessary to additionally regulate hazardous air pollutants” with respect to these power plants, given other power plant specific regulations that were also in place, according to Holmstead. The Obama administration’s EPA determined that it was in fact appropriate and necessary to regulate HAPs from coal-fired power plants, which spurred the Mercury and Air Toxics Standards rule in 2011.
The MATS rule imposed an emission control requirement for power plants which necessitated them to invest in technology. However, the Supreme Court ruled in 2015 that the EPA did not sufficiently take the costs and benefits of emission regulation into account when it mandated this rule.
By the time that the cost-benefit analysis was remanded back to the EPA to handle, industry had already come into compliance with the MATS rule and invested in the technology to meet the MATS emission standards, according to Holmstead. Though the Obama administration argued that the MATS rule was appropriate and necessary following a cost-benefit analysis and the power plants had already complied with the technological requirements of MATS, the Trump administration does not want to defend the finding that the MATS rule was appropriate and necessary, Holmstead added.
The proposed rule has yet to be published to the Federal Register, where once published it will then be subject to a 60-day public comment period.
“The comments that will be made during the public comment period will essentially be the same as the comments that people had been making informally to the EPA for the last many months,” Holmstead said. “But maybe they’ll be persuaded [to drop the proposed rule change].”
