Trump administration to make it easier for factories to emit mercury

The Environmental Protection Agency has sent a proposal to the White House that would weaken existing curbs on power plants' emissions of mercury, a powerful neurotoxin, by changing the way it calculates the cost and benefits of curbing hazardous air pollutants.

The proposed rule, according to two senior administration officials who have reviewed the document but spoke on the condition of anonymity because it has not been finalised, would reverse a 2011 Obama administration finding that the agency must factor in any additional health benefits that arise from lowering toxic pollutants from coal plants when evaluating the rule's costs and benefits. These "co-benefits," which include soot and smog-forming pollutants, help underpin the justification for the Mercury and Air Toxics Standards (MATS) that the EPA issued seven years ago.

If enacted, the rollback - which was sent to the White House Office of Management and Budget on Friday - would not eliminate existing mercury emissions limits altogether. But it could severely weaken the underlying public health justification that the previous administration used to restrict the release of that and other harmful pollutants into the air.

Details of the rule were first reported by the New York Times on Sunday.

Coal-fired power plants are the single biggest emitter of mercury, which can cause brain damage in young children. Over time, these emissions build up in fish, whose elevated levels of mercury are absorbed by people who eat it.

In an email Sunday, EPA spokesman John Konkus said the administration is seeking to address flaws in the previous administration's approach to calculating the burden federal regulations place on industry.

"The MATS Rule was an egregious example of the Obama administration's indifference toward required cost benefit analysis," Konkus said. "EPA knows these issues are of importance to the regulated community and the public at large and is committed to a thoughtful and transparent regulatory process in addressing them."

Konkus declined to discuss the rule's specifics, adding, "Any proposal remains being considered internally at this time."

Although the industry is now fully in compliance with federal mercury standards, which were subject to litigation for years, coal companies have lobbied the Trump administration to revisit the issue to set a precedent for future pollution rules. Murray Energy Corp. chief executive Robert E. Murray, who retained now-Acting EPA Administrator Andrew Wheeler as a lobbyist for years, requested the rollback in a memo to Energy Secretary Rick Perry last year.

John Walke, a clean air lawyer at the advocacy group Natural Resources Defense Council, said in an email that Wheeler and Bill Wehrum, the head of the EPA's air office, are seeking to exclude legitimate health benefits that stem from curbing air toxins.

"What Wheeler and Wehrum are pursuing - the fraudulent denial of real-world benefits from clean air and climate safeguards - is the unholy grail of EPA haters and polluting industry lobbyists for decades," he said.

Congress gave the EPA the authority in the 1990s to regulate the toxic metals that are the byproduct of burning coal - a list that also includes arsenic, nickel and selenium - but it took the agency years to develop a standard. At the time the regulation came out, the EPA estimated that it would prevent as many as 11,000 premature deaths and 4,700 heart attacks a year when fully implemented and would cost the industry $9.6 billion in compliance that year. It projected that reducing these emissions would save $37 billion to $90 billion in 2016 in annual health costs and lost workdays.

Although the Supreme Court initially required the EPA to do a more thorough cost-benefit analysis of the measure, it allowed the new standards to take effect in 2012 as litigation continued. Under the rule, coal- and oil-fired utilities had to install pollution controls that put them on par with among the cleanest facilities in their sector.

In 2015, the Supreme Court dealt a major blow to the Obama administration's efforts regulate mercury from power plants, saying U.S. officials failed to properly consider economic costs when they imposed expensive pollution controls on coal-burning power plants.

The court, in a 5-to-4 decision, halted further implementation of the rule. But justices declined to strike it down altogether and left open the possibility that the regulation could be altered and reinstated.

In response, the EPA assembled an analysis that considered the costs of the regulation, and in April 2016 issued a final finding that showed the rule's benefits outweighed its costs. That finding itself became the subject of litigation.

The decision by the Supreme Court in 2015 to require the EPA to weigh the costs and benefits of the rule came after Judge Brett Kavanaugh - President Donald Trump's current Supreme Court nominee - had made the same argument the previous year.

In a 2014 dissent from his colleagues on the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh had argued that it was "unreasonable" for the EPA not to consider the economic effect of the regulation before proceeding with it.

"Suppose you were the EPA Administrator. You have to decide whether to go forward with a proposed air quality regulation," Kavanaugh wrote at the time. "Before making that decision, what information would you want to know? You would certainly want to understand the benefits from the regulations. And you would surely ask how much the regulations would cost. ... That's just common sense and sound government practice."

Last spring, the EPA asked a federal court to delay an oral argument in a case challenging the rule. Although the power sector already had largely already complied with the regulation by modernizing pollution controls, several companies and 15 states sought to overturn it.

At the time, the Trump administration said it would seek the delay "to give the time to fully review" the case "after the change in administration." In its court filing Tuesday, officials argued that the delay was warranted, in part, because "agencies have inherent authority to reconsider past decisions and to revise, replace or repeal a decision to the extent permitted by law and supported by a reasoned explanation."

Industry groups such as the National Mining Association have long opposed the rule, saying that it has been responsible for shutting down numerous coal-fired power plants and eliminating jobs.

"The Mercury and Air Toxics Standards has already had far-reaching and costly impacts not only on our industry but on many states and their citizens whose assurance of reliable electricity supply has been cast in doubt by this rule," the group argued several years ago. "EPA's rule reflects a stunningly unbalanced approach to regulation. The agency decided to impose expensive standards for certain emissions that it never found posed a threat to public health."

Washington Post