EPA changing mercury pollution rule despite opposition from industry

The Environmental Protection Agency on Thursday will finalize a major change in the way the federal government calculates the costs and benefits of dangerous air pollutants, a shift that could restrict regulators’ ability to control toxins in the future.

The move, one in a series of actions taken by the Trump administration that experts say will likely result in more air pollution, comes as the nation is fighting a deadly virus that attacks the respiratory system.

In a controversial decision, the EPA will declare that it is not "appropriate and necessary" for the government to limit mercury and other harmful pollutants from power plants, even though every utility in America has complied with standards put in place in 2011 under President Barack Obama. While the agency technically plans to keep existing restrictions on mercury, the changes mean the government would not be able to count collateral benefits - such as reducing soot and smog - when it sets limits on toxic air pollutants.

Some coal executives have lobbied for the rollback, calling the Obama-era rule one of the worst examples of what President Donald Trump has labeled the "war on coal."

But most utilities have urged the EPA to leave intact a rule they once opposed. Some share the concerns of environmental advocates, who worry that the change could lead to a legal challenge, prompting some power plants to turn off their pollution controls and ultimately sicken more Americans.

"It's a disgraceful decision coming on the heels of other poor decisions on air quality at a time we can least afford it," former EPA administrator Carol Browner, now chair of the board of the League of Conservation Voters, said in a statement.

Tom Carper, D-Del., the top Democrat on the Senate Environment and Public Works Committee, called the move the latest in a series of decisions by the EPA that will worsen air quality and harm some of the country's most vulnerable communities.

"This is a truly needless rollback that will only create more uncertainty for our nation's utilities. It will only lead to worse public health outcomes and, truly, could not come at a worse time," Carper said in a statement. "Our country is suffering the grave and growing loss of tens of thousands of American lives to a novel coronavirus that attacks our respiratory systems, and this EPA is advancing rules that will cause more respiratory illness."

The rule in question, known as the Mercury and Air Toxics Standards (MATS), targets a neurotoxin that can affect the IQ and motor skills of children, even in utero. Between 2006, when states began to curb mercury from coal plants, and 2016, when the Obama-era rule took full effect, emissions have declined 85%.

The Obama administration initially projected that the industry would spend between $7.4 billion and $9.6 billion each year to comply with the regulation, while the nation as a whole would save between $37 billion and $90 billion from the prevention of thousands of premature deaths and lost work days.

Those estimates included not just lower mercury emissions but the collateral benefits from reductions in soot and other smog-forming pollutants that contribute to asthma and other respiratory problems. The power industry ultimately paid far less to comply. It spent about $18 billion between 2012 and 2018, or $3 billion annually.

But the Trump administration has argued that it is inappropriate to count such "co-benefits" when considering the economic impact of regulation, saying Obama used creative math to justify burdensome new requirements.

"When you do a cost-benefit analysis, you should address the pollutant that's the subject of the regulation," EPA Administrator Andrew Wheeler told The Washington Post in late 2019, adding that "98, 99% of the benefits were not for mercury."

America's Power President and chief executive Michelle Bloodworth, whose group advocates for coal-fired electricity, said in an email that the agency was right to revise its estimate to include not only "the large costs of the MATS rule but also the negligible benefits" that stem from controlling mercury. "Contrary to what some will claim, this step by EPA does not weaken environmental protections," she said.

The EPA also has insisted that under the revised rule, no more mercury will be emitted into the air than before, because the emissions requirements remained intact.

But utility executives and activists alike have warned that once the EPA deems the original rule unjustified, outside groups could sue over passing on the cost of pollution upgrades to customers. Critics of the move say it will lay the groundwork for a legal effort to nullify the mercury rule.

"While Administrator Wheeler claims the agency will keep the existing mercury standards in place, the decision to go after the underlying basis for the standards is an invitation for industry to kill these vital rules in court," Rachel Cleetus, a policy director at the Union for Concerned Scientists, said in a statement Thursday.

Even the electric industry is skeptical.

Edison Electric Institute spokesman Brian Reil, whose group represents most of the U.S. power industry, said that if the agency repeals the underlying basis for the rule, it introduces "new uncertainty and risk for companies that still are recovering the costs for installing those control technologies." Reil noted the electric power industry has invested more than $18 billion to install pollution controls to comply with existing law, and has reduced its mercury emissions by nearly 90% since 2010.

The 2011 requirements did more to hasten the closure of coal-fired power plants than any other regulation adopted under Obama. Facing the first limits on these pollutants, companies across the country chose to switch to natural gas or renewable energy rather than invest in costly new pollution controls.

Utilities initially fought the rule in court, along with coal producers and Republican attorneys general. The Supreme Court ruled in 2015 that the EPA had failed to adequately justify the economic impact of the standards. The following year, the Obama administration published an analysis saying the combined benefits of curbing mercury and other pollutants, like soot, outweighed the costs even when taking industry expenditures into account.