The Trump administration’s EPA decision on changing the 2011 Obama administration rule regulating power plant mercury emissions – leaving it in place but saying it wasn’t valid in the first place – is producing head-scratching confusion. EPA went ahead with its incomprehensible regulatory offering largely over the objection of the electric utilities it was designed to appease, as they have already implemented the rule and had no appetite for repeal.
The new EPA response to the Obama rule, which has been in the making for many months, says the basis for the Obama action, based on a sophisticated calculation of the costs and benefits of the rule, which some in the coal industry argued were bogus, were not “appropriate and necessary.”
When he came into office, Trump and his then-EPA chief Scott Pruitt, since departed for ethical violations, said the Mercury and Air Toxics Standards (MATS) was the key element of Obama’s “war on coal,” a claim it could never support. Current EPA chief Andrew Wheeler, a former coal lobbyist, faced widespread criticism when he pushed MATS repeal.
In this week’s action, Wheeler said, “We have put in place an honest accounting mechanism…One would not say it is even rational, never mind appropriate, to impost billions in economic cost in return for a few dollars in health benefits.”
Wheeler faced widespread industry opposition to a MATS repeal, so EPA decided on a mystifying approach. The agency said it wouldn’t repeal the rule, but said that the calculations of costs and benefits, particularly EPA’s decision, after a court remand, to include collateral benefits of mercury reductions, including fine particulates (soot), was invalid under the Clean Air Act.
The electric utility industry initially opposed the Obama EPA rule, claiming it would cost some $10 billion annually. It turned out that the costs were around $3 billion annually, and the industry has fully complied.
Attorney Megan Houdeshel at the Dorsey & Whitney law firm, who has represented mining, oil, chemical, energy, and public utilities in the western U.S. and Canada, was among those somewhat perplexed by the impacts of the new EPA rule. An a law firm email, she said, “The rule announced this week by the EPA does not actually remove the Mercury Air Toxics Standards (MATS) put in place by the Obama Administration for coal and oil fired power plants, but changes the calculus for how the costs and benefits of future regulations under Section 112 of the Clean Air Act should be performed.”
She added, “The new rule will face a number of legal challenges, including the question of how the MATS can remain if the agency has determined that regulation of coal and oil fired power plants is not appropriate or necessary under Section 112 of the Clean Air Act. Moreover, if a new administration is put in place in November, this determination will likely be revisited leaving sources in an uncertain status regarding their regulatory compliance obligations.”
Houdeshel said, “How costs and benefits are weighed under Clean Air Act regulations has been subject to much debate and legal challenge for many years. This latest rule by the EPA likely goes the furthest in limiting health benefit cost calculations in relation to costs of implementation and compliance. Whether this cost benefit analysis is applied to other regulatory actions under the Clean Air Act will be important to watch during the coming months before the election in November.”
The EPA action also drew internal fire. Politico reported, “EPA’s Science Advisory Board this week noted that the change is a departure from ‘long-standing practice’ and is ‘contrary’ to EPA and [Office of Management and Budget] guidance.”
–Kennedy Maize