This week CATF, with other environmental, public health, and civil rights organizations, submitted comments on an EPA proposal regarding the Mercury and Air Toxics Standards (“MATS”). Led by former coal lobbyist Andrew Wheeler and former industry lawyer Bill Wehrum, EPA is proposing to reverse a 20-year old finding that it is appropriate and necessary to regulate hazardous air pollutants (also referred to as air toxics), including mercury, toxic metals (including carcinogens), acid gases, and organic compounds that are emitted by the nation’s large coal- and oil-fired power plants. While claiming that its proposed action is not a proposal to repeal the MATS rule, the Agency asks no fewer than 11 times in its proposal whether it can and even must do just that.
In response to the Supreme Court, in 2016 EPA determined that it was “appropriate and necessary” to regulate hazardous air pollutant (“HAP”) emissions from coal- and oil-fired power plants because the costs of controlling these emissions were reasonable and, alternatively, that the total benefits of regulation (estimated at up to $90 billion) were many times greater than the projected (and it turns out overestimated) total costs ($9.6 billion). In order to get around these inconvenient facts and numbers, the Trump EPA has chosen to do an unusual gerrymandered form of analysis that compares the overestimated $9.6 billion cost of regulation to a tiny subset of monetized mercury reduction benefits to recreational fishers, which were estimated as being worth only $4-6 million. It is also important to note that we now know the $9.6 billion cost projection was incorrect because power plants have installed the required controls and the cost has turned out to be significantly less. In other words, EPA is determining that regulation of these hazardous air pollutants is not appropriate based on an outdated estimate of costs that have already been spent. If this sounds like a confusing or absurd academic exercise, that’s because it is.
In order to find the regulation not “appropriate,” EPA conducted a biased analysis in which it ignored and dismissed a number of key facts. First, EPA ignored information showing that it had previously overestimated the cost of compliance, which turned out to be significantly less than the outdated $9.6 billion estimate. The data shows that EPA overestimated the amount of certain types of pollution controls that power plants would need to install, while also incorrectly expecting natural gas prices to rise, which would have increased costs for replacement natural gas generation. Second, EPA excluded $89 billion of particulate matter reduction benefits from “primary consideration” because they are not “targeted” by MATS. By doing this, EPA has essentially devalued the health benefits of 11,000 fewer premature deaths annually, 4700 fewer heart attacks, and 130,000 fewer asthma attacks requiring hospitalization. For the people whose lives are saved or improved by MATS, these benefits are clearly real and worthy of consideration.
Third, in its proposal, EPA barely addresses the bulk of the HAP reduction benefits of MATS, which are unquantified and unmonetized. Indeed, the monetized HAP reduction benefits focus exclusively on mercury and do not include any benefits from reducing emissions of many other toxic metals or acid gases. Furthermore, EPA’s monetized mercury reduction benefits have consistently been recognized (including by EPA itself) as nowhere near a comprehensive estimate, and more recent studies have suggested that the value of mercury reduction benefits are orders of magnitude greater than the outdated $4-6 million dollar estimate EPA relies on, and may be enough to justify the costs of the entire rule on their own. EPA’s dismissive treatment of unquantified HAP benefits is inconsistent with Congress’ intent and the purpose of section 112 of the Clean Air Act, which was clearly to reduce emissions of these particularly harmful pollutants.
EPA’s use of a manipulated analysis to reverse its finding is clearly arbitrary, capricious, and inconsistent with the text and purpose of the Clean Air Act, rendering the proposal itself unlawful. An unusual coalition of industry, environmental and public health organizations, and state attorneys general have expressed strong opposition to reversing the appropriate and necessary finding. If EPA chooses to move forward with this proposal, the Agency will have to contend with a broad group of states and organizations who believe the benefits of controlling hazardous air pollution are worth pursuing.
It is also worth noting the broader context of this proposal. This is just one of many steps EPA has taken to undermine environmental protections by underestimating and excluding inconvenient facts, particularly the value of health benefits from particulate matter reductions. EPA has also attacked the scientific studies behind particulate matter reduction benefits and tried to introduce arbitrary thresholds for excluding particulate matter benefits in its analyses. CATF will continue to expose and challenge these and similar efforts by the Administration to manipulate analyses and hide the very real environmental and public health benefits of reducing air pollution.