Another Win for Fossil Fuels: EPA to Weaken Basis for Calculating Mercury and Future Environmental Standards

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

Nearly halfway through his first term, Trump’s domestic policy record is decidedly mixed – despite having enjoyed Republican House and Senate majorities.  In 2017, he enacted a massive tax cut for the wealthy and corporations. But plans to fix America’s crumbling infrastructure are stalled, and Congress has opted to  shut down the government rather than cave and allow Trump to build his beloved Mexican wall.

One area in which the administration has delivered:  promoting the interest of the fossil fuels industry. Last Friday provided just the latest example, when – a mere hours before the agency was due to be shuttered  at midnight as a result of the impasse between Trump and Congress – the  Environmental Protection Agency (EPA) announced its intention to weaken coal-fuelled power plant regulations issued in 2011 to reduce mercury emissions.

According to New E.P.A. Plan Could Free Coal Plants to Release More Mercury Into the Air as reported by The New York Times:

In the proposal, the Environmental Protection Agency issued a finding declaring that federal rules imposed on mercury by the Obama administration are too costly to justify.

It drastically changed the formula the government uses in its required cost-benefit analysis of the regulation by taking into account only certain effects that can be measured in dollars, while ignoring or playing down other health benefits.

The result could set a precedent reaching far beyond mercury rules. “It will make it much more difficult for the government to justify environmental regulations in many cases,” said Robert N. Stavins, a professor of environmental economics at Harvard University.

While the proposal technically leaves the mercury restrictions in place, by revising the underlying justifications for them the administration has opened the door for coal mining companies, which have long opposed the rules, to challenge them in court. The rules, issued in 2011, were the first to restrict some of the most hazardous pollutants emitted by coal plants and are considered one of former President Barack Obama’s signature environmental achievements [Jerri-Lynn here: my emphasis.]

Jerri-Lynn here: The rule change – combined with the Trump administration’s other big domestic success – seating federal judges – might well allow courts to overturn environmental and other regulations, even once other personnel in future staff the EPA (see Trump After 500 Days: More Lifetime Federal Judges, which also includes links to other relevant posts). And these Trump judges would also have the power to thwart – at least in the first instance – whatever agenda a more progressive Congress and President might enact to redress the Trump policies.

I should point out that the Trump administration’s relentless focus on filling vacant judgeships was, at last until recently, achieved with the active connivance of Senate Democrats. Republicans seem to grasp a point that eludes Democrats: the Supreme Court is not the only game in town. That court hands down a small number of opinions each year – granting oral argument  in only about eighty cases annually, according to the Court. That’s fewer than half as many cases as were decided yearly during the 1960s. In actual practice, federal  district and appellate judges are, in effect, the ultimate decision makers in the vast number of cases that reach the federal courts. (And, as I emphasized in my post cited immediately above, we shouldn’t forget that one reason Trump has been able to fill so many judgeships is because the previous administration left so many posts vacant.)

Back to the mercury rule, which Grist places in context:

Cass Sunstein, a legal scholar and former Obama administration official who oversaw the drafting of these power plant regulations, called the rollback “simultaneously stupid and cruel.” Cruel because the EPA analysis suggested that this Mercury and Air Toxics Standard would prevent 11,000 deaths, 2,800 new cases of chronic bronchitis, and 130,000 asthma attacks every year. And stupid because the same analysis said America will save at least $4 in health costs for every dollar spent cleaning up power plants.

This rollback is part of a pattern: It’s yet another environmental regulation that Obama staffers attempted to tighten only to be re-loosened by Trump’s people. In this case, the Obama’s administration issued a new rule under the Clean Air Act to make large coal and oil power plants control the amount of mercury, arsenic, and metals puffed out their smokestacks — pollutants that were previously unregulated. After years of bouncing around federal courts, the rule landed in the lap of the Trump Administration, which has decided we shouldn’t bother regulating that stuff at all.

Loosening rules that hamper to fossil fuel interests is part of a wider Trump agenda of reducing environmental regulations. The New York Times last week produced an analysis of Trump’s environmental record in 78 Environmental Rules on the Way Out Under Trump. Thirty-seven of these – either pending or completed – concerned air pollution and emissions, and drilling and extraction.

I will also mention in passing – because I know if I don’t, members of the commentariat will chime in on this point – is that Trump’s predecessor had, alas, failed to lead us to environmental nirvana. Far from it. Instead, that peerless environmental leader recently took credit for vaulting America back to being the world’s largest oil producer during his watch, Obama: Suddenly America Is the Biggest Oil Producer, That Was Me People.

For those who haven’t seen this already, do take a look – if only to remember that Trump isn’t the only smug, self-satisfied recent occupant of the Oval Office who’s serviced fossil fuel interests:

But I digress.

Power Plants Reject Rule Change

Although the coal industry strongly endorses relaxing the mercury regulations, many power plants don’t support the change. The reason: they have already invested heavily in taking steps to comply with tightened standards. According to Grist:

[T]hese companies have already decommissioned their most odious plants and have spent billions installing the exhaust-scrubbing equipment on the rest. As a result, power plants are spewing far less pollutants — as much as a 81 percent less — than they emitted before the regulations went into place in 2011.

The WaPo provides further detail:

The Edison Electric Institute, which ranks as the utility sector’s largest trade association, said in a statement Friday that its members wanted to preserve the Obama-era pollution standards. Its spokesman Brian Reil said that it recognized the EPA was legally obligated to review the Mercury and Air Toxics Standards (MATS) under the Clean Air Act, but remained silent on whether the agency should change its cost-benefit analysis.

“EPA should leave the underlying MATS rule in place and unchanged, and should not finalize any action that would undermine the existing MATS rule,” Reil said. “Since the MATS rule took effect in 2012, electric companies have reduced mercury emissions by nearly 90 percent.”

The Bottom Line

The latest mercury climbdown represents perhaps the last gasp of a dying industry, Trump’s support notwithstanding – even when other business interests, such as those operating power plants – had adjusted to a tougher regulatory regime.

To avoid further exacerbating climate change, what’s desperately needed is to stop burning fossil fuels. But those aren’t the policies that Trump regulators, especially at the EPA and the Department of the Interior – have so effectively delivered – with these outcomes measured, too, against a sadly lacking baseline.

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5 comments

  1. David

    Interesting article. It does fail to mention that the driver behind the rule change isn’t President Trump, but the Supreme Court. From the EPA release,

    The Environmental Protection Agency (EPA) is proposing a revision to its response to the U.S. Supreme Court decision in Michigan v. EPA which held that the EPA erred by not considering cost in its determination that regulation … of hazardous air pollutant (HAP) emissions from coal- and oil-fired electric utility steam generating units (EGUs) is appropriate and necessary.

    In the Michigan v. EPA opinion, Justice Scalia (who else!) wrote,

    “Appropriate and necessary” is a capacious phrase. Read naturally against the backdrop of established administrative law, this phrase plainly encompasses cost. It is not rational, never mind “appropriate,” to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits…

    EPA must consider cost—including cost of compliance—before deciding whether regulation is appropriate and necessary.

    Looks like the “legal scholars” dropped the ball again. By the way, the case was decided in 2015, pre-Trump IIRC.

    Also buried in the EPA release,

    Finally, the EPA is also taking comment on establishing a subcategory for emissions of acid gas HAP from existing EGUs firing eastern bituminous coal refuse.

    So, more regulation under Trump. Enjoy your weekend.

    Reply
  2. drumlin woodchuckles

    One could take two basic approaches to controlling pollution for public health and safety.
    Approach One was laid out some years ago by Ecologist Barry Commoner, author of The Closing Circle and other books. He said that finely calibrated regulation was a fool’s errand because no regulation could ever be calibrated finely enough. He recommended the Zero Tolerance approach. In the case of mercury from coal, he would have said ( and I think he even did say decades ago) that Federal Government should pass and sign a very simple law saying that the coal plant industry would be permitted to emit precisely ZERO atoms of Mercury. And if ANY atoms were detected, the relevant executives would spend many years of Hard Time in Federal Prison. And the power companies had the absolute right to pass on to the consumers every last bit of the cost of emitting ZERO atoms of Mercury. Consumers should pay the full price of their consumption.

    Approach Number Two is what we have: finely calibrate regulation under laws designed to create Agencies to create and administer the finely calibrated regulations. The most powerful power-players can game or re-write the finely calibrated regulations to their economic class benefit.

    If we wish to remain committed to Approach Number Two, then all we can do is try electing a Two-Houses-And-The-White-House majority from a political party created to re-bias the finely calibrated regulation battlespace back towards public health and public benefit. In the meantime, if we are considering the narrow subject of mercury from coal smoke; the less coal gets burned, the less mercury gets emitted. So , just within AmeriCanada, how can 150 million Blue Team Lay-Z-Boy virtue signallers transform themselves into 150 million firm-to-militant virtue practitioners? And if the 150 million Blue Team members transform themselves in that manner, what can they do in their 150 million personal lifestyles to strangle back their use-causation of power-plant coal as near to ZERO as they can strangle it?

    That is . . . . if they reeeealllly CAAAARE . . . . about mercury emissions from coal smoke.

    Reply
  3. redleg

    The Wisconsin method:
    1. Leave adequate environmental regulations on the books;
    2. Cut enforcement and monitoring budgets 90% or more;
    3. Amend laws to automatically and irrevocably approve all variances to the environmental regs and permit applications that do not meet regulatory limits if they aren’t denied within a too-short review period.

    Result: politicians (usually but not exclusively GOP) get to claim that they never repealed any environmental protections, and their donors get to do whatever the hell they want to do, no matter the consequences. Plus the politicians get to claim that they were fiscally conservative.

    Reply
  4. Chris

    How many companies will take advantage of these deregulations, given the chance that they’re reversed in 2 years? I know some, but will companies design long-term plans around them?

    Reply

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