In its first attempt to reverse a Trump-era rollback last Wednesday, EPA sought the legal foundation to rebuild power plant emission regulations that were in place a decade ago.
The rule contains clues as to how the agency might justify future actions to reduce the harmful effects of toxic air pollution on low income communities and people of color.
In a draft ruleEPA officially admitted for the first time that the original compliance price tag it had forecasted for the Mercury and Air Toxics Standards would be far too high. The agency maintained that it was not necessary to translate all the projected gains from less death and disease into dollars-and cents terms. This would allow the agency to lay the foundation for environmental justice goals.
Even when information is lacking to monetize the benefits of expected pollution cuts, we think it is appropriate to give substantial weight to those public health impacts,” says the draft. This statement can be interpreted as a rebuke against the Trump administration’s stance that sought to subject all major Clean Air Act rules to cost benefit analyses.
It is a sign that future regulations will consider nonquantifiable benefit more heavily than they did in the past, David Loring (an environmental attorney at Schiff Hardin LLP who represents utilities) said in an interview.
Loring predicted that EPA would adopt a similar stance to other rules, even if the exact consequences of such a shift are not yet known. He said that it could be used to support the rationale of including environmental justice concerns, which have been a Biden administration hallmark.
Mary Evans, a University of Texas Austin public policy professor, accepted the offer. Under an approach that is supposed to account for the “totality of the circumstances,” EPA “is going to put environmental justice analysis on a different ground than its been on, Evans said in an interview and follow-up email exchange. The reason? A cost-benefit test might not be enough to determine whether a specific regulation will cause a more even distribution of pollution exposures or worsen existing differences.
My sense is that the totality of the circumstances’ approach is an effort to understand answers to some of these broader questions, Evans said.
The draft rule shows that Black women in South who depend on subsistence fishing for their food may be more at risk than the general population from exposure to the organic mercury known as methylmercury.
These results are relevant to consider the benefits of regulating power station releases of hazardous pollutants, the draft states.
This stance is in line with the White House InstructionsAmit Narang (liberal-leaning group Public Citizen), was a regulatory policy advocate at Public Citizen. He stated that the goal of regulatory initiatives was to make sure that they properly benefit marginalized and disadvantanged communities. Narang expects that EPA will continue to prioritize nonquantifiable benefits and protecting areas around industrial pollution sources in the future.
He said that both of these are important reforms that will improve the policy analysis process at EPA.
Cost forecasting flaws
The proposal restores the legal basis necessary for regulating mercury, formaldehyde and air toxics from coal and oil-fired power plant emissions.E&E News PM, Jan. 31). Former President Trump’s EPA scrapped the finding two years ago (Greenwire,April 17, 2020 Now, the Biden administration says the Trump approach flops because it gave little or no weight to the statutory concern … to protect even the most exposed and most vulnerable members of the public.”
In the beginning, annual compliance costs were estimated to be as high as $9.6 trillion. Critics have repeatedly compared this figure with estimates of direct health benefits that only a few millions of dollars would result.
The agency now claims that the actual cost to the power industry was almost certainly lower than the projected amount. This is consistent with what private observers have been claiming for years. Although EPA doesn’t attempt to calculate exactly what MATS actually cost the agency drafts that only one portion of the original forecast, which dealt with the installation of pollution control systems, may have been as high as $4.4 billion.
However, the draft states that the lower price tag than expected supports regulation’s appropriateness and necessity after cost considerations. Although the draft touts additional research over the past decade that has highlighted the public health benefits associated with cutting hazardous power plant emissions, the document does not attempt to update those relatively small dollar gains directly attributable MATS.
Although EPA regularly suggests that the standards were crucial in driving massive reductions in coal-fired plant pollution, the draft cites research indicating a more significant role for natural gas prices in weaning utilities from coal. According to one study, 92 percent of the dropin coal production between 2008 & 2016 can be attributed to cheaper gas. However, MATS and other regulations account for only 6 percent.
Particularly in its organic form, mercury is a neurotoxin dangerous to fetuses and babies’ brain development. However, nearly all of the health gains of at most $37 billion in one scenario were initially attributed to the co-benefits from reducing soot-forming pollutants not directly targeted by the standards. The large gap between the direct benefits of the standards and their compliance costs quickly became a rallying cry among critics who filed lawsuits to stop them from going into effect.
Fairly dramatic” was Supreme Court Chief Justice John Roberts’ description of the gap during 2015 oral arguments on legal challenges to the standards (Greenwire, Nov. 10, 2021). A few months later, the high-court issued a 5-4 opinion, which stated that the emission limits were maintained, but that the EPA should have considered industry’s costs when making the necessary and appropriate determinations. In a 2016 response, EPA officials said that cost considerations would make no difference. That response, known as a supplemental finding,” is itself the target of industry lawsuits that have now been in limbo for almost five years after the U.S. Court of Appeals for the District of Columbia Circuit agreed to put proceedings on hold (Greenwire, 28 April 2017.
In 2020, Trump’s administration pointed out the gap in removing the supplemental finding. This was in addition to the conclusion that regulation of toxic substances from power plants had been properly justified. Published in the Federal RegisterThe rule proposal will be subject to public comment for 60 days. A virtual hearing is also planned.
Emissions reductions offer many benefits
In Overviewissued late last year by Harvard University, researchers concluded that “the value of reducing emissions is orders of magnitude higher than EPAs initial effort at monetization for the 2011 rulemaking.”
Because virtually all remaining coal-fired plants were in compliance by 2017, the reinstatement of the standards’ legal underpinning would have no immediate practical effect, although it could thwart a coal company’s lawsuit targeting the actual emission limits (Greenwire, Aug. 24, 2020). Utilities opposed the Trump administration’s rollback out of fear that it would limit their ability to get state regulators approval to charge customers compliance costs.
The two sides are divided on whether or not the existing standards should be increased. After a statutorily required review, Trump administration determined that the status quo was adequate. This decision was supported by power producers, but opposed by environmental and public-health advocates. The rule proposes that the EPA will seek feedback to reconsider its decision.
Dominique Browning, director at Moms Clean Air Force, stated in a statement that parents should not be relieved. Not when coal plants continue emitting dangerous quantities of hazardous pollution, including 33,000 lbs of mercury every year.
Capitol Hill has seen a lot of silence from members of Congress who once championed or fought the standards. Tom Carper, D-Del., Senate Environment and Public Works Chair.).
Carper stated last week that MATS had been successful in reducing power plant emissions. However, the previous administration failed science in its attempts to reverse these protections.
We can now breathe a bit easier knowing that the EPA will stick with what we all know: Clean air is vital to healthy communities, and a thriving economic system.