Trump’s new attempt to gut clean air protection
President Trump’s Environmental Protection Agency is laying out a devious plan to give the coal industry a major break on toxic air emissions.
The EPA announced in December it will change the way it evaluates costs and benefits for the mercury and air toxics rule.
The main target is the limit on emissions of mercury, a powerful neurotoxin that attacks the human brain and causes debilitating illness and death, particularly in infants and young children. Since the current rule was put in place under the Obama administration, it has saved up to 11,000 lives a year.
The administration has proposed eliminating all indirect benefits in assessing the cost-benefit finding that underlies the rule. This would ensure the rule is not cost-effective and thus doom it.
Indirect benefits are those that are reasonably projected to flow from a rule, but are not its main purpose. For example, particulate matter (soot, smoke and poisonous gases) emitted by coal- fired power plants, can cause heart disease, cancer and asthma, but the scrubbers used by coal- fired power plants to remove mercury also remove particulates thus creating a major, indirect benefit.
If the administration is successful in the elimination of indirect benefits, which have been part of the evaluative process for 40 years, the limits on toxic pollutants other than mercury could also be attacked as too costly to be “appropriate and necessary” under the Clean Air Act.
It is hard to see how this change in the Clean Air Act can be justified by the Trump administration.
The Act’s primary purpose, spelled out in the first section of the law, is to “protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare…and the productive capacity of its population.”
Based on that mandate, EPA has enacted many rules, all consistently defining the words “protection of human health” to include both “direct” and “indirect” benefits.
Over the years, the EPA and Office of Management and Budget have issued studies of the costs and benefits of clean air regulations. They have found that most air pollution regulations including those relating to power plants and mercury are both life-saving and cost- beneficial by an average ratio of at least four to one, benefits over costs.
Benefits include elimination of lost income and health care costs for people killed or disabled from both direct and indirect causes.
For 40 years, the agency has consistently followed this definition of “benefits” based primarily on Executive Order 12866, issued by President George H.W. Bush and reissued by President Clinton:
Agencies should “assess all costs and benefits of available regulatory alternatives” and “be understood to include both quantifiable measures…and qualitative measures that are difficult to quantify… but nonetheless essential to consider.”
The executive order adds, “agencies should select those approaches that maximize net benefits including potential economic, environmental, public health and safety and other advantages.”
To further clarify, OMB issued Circular A- 4 in 2003, which directed agencies to “attempt to quantify benefits and costs as much as possible (e.g. tons of pollution avoided, or the number of children… (effected) and exercise professional judgment in determining whether non-quantified factors are important enough to justify consideration of the regulation.”
Circular A-4 also states that a systematic identification of all of the costs and benefits that are associated with a forthcoming regulation should include “non-quantitative and indirect costs and benefits.”
Now, the Trump EPA has proposed gutting limitations on the discharge of carcinogenic mercury from power plants by changing the core finding of “benefits” to exclude indirect benefits. This would omit counting reductions in emissions of particulates, a major coal-fired power plant emission and health threat.
The proposed approach has created a split between the electric generating industry, which has complied with the existing rule by installing scrubbers, and the coal industry, which is pushing hard for the change.
A primary proponent of the change is Trump’s acting director and current nominee for EPA administrator, Andrew Wheeler, who was for years a coal industry lobbyist.
If applied to all clean air rules, the redefinition of costs and benefits could eliminate health-based limits on dozens of toxic emissions.
The Trump action raises life and death policy questions.
--Can the administration redefine the benefits of past or future pollution regulations to exclude indirect costs, even though they are certain to occur and have been used under the law since 1970?
--Can EPA apply this new definition of benefits to already existing regulations such as the mercury rule, which have the force of law?
--What is the standard for court review (which is surely imminent) of such a redefinition and reduction of “benefits” in the rule? Can the amended finding be supported by reasonably accurate scientific evidence in the administrative record?
Existing Supreme Court precedent appears to preclude this change, whether it is called a finding or an amendment to an existing rule. In the “air bag” case, decided in 1983, when the Reagan administration attempted to rescind the passive restraint rule enhancing motor vehicle safety, the Court held that agencies, (including the White House) cannot change existing regulations (or presumably their key sections) without establishing a reasonable basis in the rule-making record, and proving that any proposed new regulation is reasonably supported by the evidence.
It seems unlikely that the Trump administration can meet this test to support this change in the mercury air toxics, or other clean air rules.
Michael R. Lemov is an attorney who served as counsel to subcommittees of the House Commerce Committee under chairman John E. Moss, with oversight of EPA and the Clean Air Act. He is the author of “People’s Warrior: John Moss and the Fight for Freedom of Information and Consumer Rights” (2011) and “Car Safety Wars: 100 years of Technology, Politics, and Death” (2015).