Late on April 18, the Trump EPA filed papers in the Court of Appeals for the D.C. Circuit indicating that the agency intends to “review,” and perhaps reverse, the Obama Administration’s decision to regulate mercury, arsenic, acid gases, and other hazardous air toxics emitted by coal-fired power plants. That review promises to offer further insight into the Trump Administration’s willingness to privilege blind, pro-polluter ideology over common sense and the interests of the public and business alike.
First, some background: In 1990, Congress instructed EPA to study the health hazards of power plants’ toxic emissions, and to determine whether it was “appropriate and necessary” to regulate those emissions; if EPA so found, Congress required the agency to issue standards reducing those emissions under the Act’s stringent rules governing such emissions. 42 U.S.C. 7412(n)(1)(A).
That straightforward statutory instruction produced over two decades of political, regulatory, and judicial wrangling. That back-and-forth culminated, in 2012, with the Obama EPA’s determination that power plants’ emissions of mercury and other toxics posed a grave threat to Americans’ health, and that it was therefore appropriate and necessary to regulate those emissions. Accordingly, EPA promulgated standards—the Mercury and Air Toxics Standards, or “MATS”—protecting the public from those emissions.
Although those standards were eminently sensible—requiring existing plants to simply improve their performance to match the reductions achieved by currently operating, state-of-the-art power plants—the coal industry and their allies (including then Oklahoma Attorney General Scott Pruitt) challenged virtually every aspect of the toxics safeguards .While most of those challenges proved unsuccessful, the coal industry pursued its case to the Supreme Court, where a narrow majority held that EPA had, in making its threshold finding that it was “appropriate and necessary” to regulate power plants, paid insufficient attention to the costs of such regulation to the industry.
The Court sent the rule back to the Agency to answer a narrow question: did the costs of doing so make it inappropriate to regulate power plants’ toxic emissions? EPA duly re-examined the cost of its Mercury and Air Toxics Standards, and in 2016 reaffirmed that, given their massive health benefits, and reasonable costs (especially given the size of the utility industry), the Agency’s regulations were both appropriate and necessary. Meanwhile, virtually every remaining coal-fired power plant in the country came into compliance with the standards, at a fraction of the cost that EPA had initially estimated.
Nevertheless, a handful of coal-related interests (again, including Attorney General Pruitt) again filed suit, contesting EPA’s finding that coal plants should be required to reduce their toxic pollution. Briefing in that suit was completed earlier this year, and the D.C. Circuit was poised to hear arguments next month—after which the Air Toxics Standards’ long, tortuous process would in all likelihood have been complete, and the public finally secure in its protection from the mercury, metals, and gases that coal plants had, until the Standards became effective, emitted without meaningful, nation-wide limitation.
The Trump Administration’s move this week indicates, however, that this story may not be over. As with a host of other public health protections, the Administration is considering whether it will try to withdraw the Mercury and Air Toxics—here, by asserting that the costs of the Standards render them not “appropriate.” That would be a startlingly nonsensical result, for three reasons.
First, and most importantly, the Mercury and Air Toxics Standards provide massive public health benefits. Power plants are the country’s leading source of mercury, arsenic, hydrogen chloride, and other acid gases. By limiting power plants’ toxic emissions, the Standards have reduced total national anthropogenic emissions of mercury, arsenic and other metallic toxics by over a third, and eliminated nearly half of the country’s acid gas pollution. Prior to the Standards, according to EPA, approximately 580,000 women of child-bearing age suffered from blood mercury levels sufficient to endanger a developing fetus. These are precisely the benefits that Congress enacted the Clean Air Act’s air-toxics provisions to secure. EPA has found that, by virtually any measure, the electric utility industry can achieve those benefits without incurring any undue expense. EPA’s estimated compliance costs (industry’s actual costs, again, have proven much lower) amounted to only 4 to 6 percent of the industry’s typical annual capital expenditures (and less than 4 percent of the industry’s annual revenues. To deem these eminently achievable benefits nevertheless not worthwhile would be to over-write Congress’ clear instructions to the Agency, in the Clear Air Act, to protect the public from the neurological and carcinogenic dangers posed by mercury and other air toxics.
Second, even if the Agency were to ignore Congress’ expressed desire to protect all Americans from the dangers of air toxics, and instead conduct its own weighing of the Standards’ benefits and costs—EPA could only reasonably conclude that these Standards are an enormous bargain for the country. The public is reaping somewhere between $33-90 billion in health benefits each year, at a cost of $9.6 billion to the power industry. By any plausible measure, the Standards are thus worth leaving in place. In order to deem otherwise, the Trump Administration will, in essence, have to cook its books. For example, the coal industry has suggested a dubious mathematics by which benefits such as preventing a child’s asthma attack, saving her a trip to the hospital and sparing her parents a day of lost work, would count for nothing. So if a regulation costs a polluter a dollar, while also preventing a thousand such asthma attacks—despite the tens of thousands of dollars those attacks might impose in medical costs, as well as lost wages and productivity—the Administration would count only the polluter’s dollar. No reasonable person should be willing to accept such a perverse accounting.
Third, and most practically, the utility industry has already complied with the standards. Plants have invested in the controls necessary to control their air toxics, and they cannot un-spend that money. By retroactively removing the rationale for expenditures utilities have already made, EPA would do those utilities no favors—especially those who expect to reclaim such expenditures from ratepayers. And EPA would remove a vast portion of the Standards’ benefits, while saving the utilities only the minimal expense of turning their controls on.
Removing the standards now, in other words, would require President Trump and Administrator Pruitt to place their anti-regulatory, pro-polluter ideology over the law, economics, and reality itself. Troublingly, given the Administration’s conduct thus far, that provides scant assurance as to what it will choose to do.