Last week of 2018, during the partial government shutdown and holiday lull, many may have missed a significant development in the environmental law arena – a proposal by the EPA to rollback an Obama-era regulation to reduce mercury pollution from the nation’s coal-fired power plants.
The 2011 rule, called the Mercury and Air Toxics Standards(MATS), was promulgated by the prior administration and intended to address the negative effects of mercury on human health and the environment by requiring power plants to reduce emissions of mercury and other toxins by more than 90 percent over 5 years. The regulation focused on emissions from coal and oil fired power plants. Some estimate that coal power plants in the US are the single largest manufactured source of mercury pollutants. It has been claimed that exposure to mercury can cause brain damage, learning disabilities, and other birth defects in children. The World Health Organization says mercury is one of the top 10 chemicals or groups of chemicals of major public health concern.
In justifying its proposal to rollback this regulation, the current EPA engaged in a different cost benefit analysis of the regulation than the previous administration and found that the benefits to human health and the environment may not be worth the cost of the regulation. A cost benefit analysis is required under the U.S. Supreme Court decision of Michigan v. EPA; in the decision, the court held that the EPA had unreasonably interpreted the provision of the Clean Air Act that requires it to regulate power plants when “appropriate and necessary” when the agency refused to consider cost in making such a determination. In its opinion, the Court stated that “[i]t is not rational, nor ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.” According to the current EPA, the regulation produces $4 million to $6 million a year in measurable health benefits while electric utilities have been caused to spend $7.4 billion to $9.6 billion annually to clean up mercury and other toxins from the smokestacks of coal-fired power plants.
The EPA announcement states:
“After properly evaluating the cost to coal- and oil-fired power plants of complying with the MATS rule (costs that the Obama Administration estimated range from $7.4 to $9.6 billion annually) and the benefits attributable to regulating hazardous air pollutant (HAP) emissions from these power plants (benefits that range from $4 to $6 million annually) — as EPA was directed to do by the U.S. Supreme Court [Michigan v. EPA] — the Agency proposes to determine that it is not “appropriate and necessary” to regulate HAP emissions from power plants under Section 112 of the Clean Air Act. The emission standards and other requirements of the MATS rule, first promulgated in 2012, would remain in place as EPA is not proposing to remove coal- and oil-fired power plants from the list of sources that are regulated under Section 112 of the Act.”
The prior administration had calculated health benefits of up to $80 billion a year. In addition, the Obama administration had estimated that the regulation would prevent an estimated 4,700 heart attacks, 130,000 asthma attacks, and 11,000 premature deaths, not from the reduction in mercury itself, but from a reduction in particulate matter linked to heart and lung disease that occurs when mercury emissions are reduced. The current EPA, however, disputes these estimates. As a result of the current cost benefit analysis, the EPA claims that the regulation cannot be justified as “appropriate and necessary,” a mandatory legal benchmark under the Clean Air Act.
Aside from environmental groups, interestingly, the renewed proposed rule has also received some pushback from the regulated industry. For example, some utility companies claim that the proposed changes are now of little benefit to them because they have already spent the money needed to come into compliance. These groups have requested the administration to keep the regulation in place. On the other hand, other industry groups have strongly supported the agency’s announcement.
Challenges to the proposed rule will likely take place, and it seems the regulated industry will have different takes on the proposal. The proposal will appear in the federal register in the following weeks and the public will have 60 days to comment on it before a final rule is issued.