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EPA proposes rule change that would limit pollution control for years to come

EPA proposes rule change that would limit pollution control for years to come

Plan would weaken the ability of the EPA to impose new regulations in the future
EPA proposes rule change that would limit pollution control for years to come
A coal-burning power plant in Colstrip, Mont., Oct. 15, 2018.
Photographer: Janie Osborne/The New York Times

WASHINGTON — The Trump administration Friday announced a plan designed to make it easier for coal-fired power plants, after nearly a decade of restrictions, to once again release mercury and other pollutants linked to developmental disorders and respiratory illnesses into the atmosphere.

The limits on mercury, set in 2011, were the first federal standards to restrict some of the most hazardous pollutants emitted by coal plants and were considered one of former President Barack Obama’s signature environmental achievements. Since then, scientists have said, mercury pollution from power plants has declined more than 80 percent nationwide.

President Donald Trump’s new proposal does not repeal the regulation, known as the Mercury and Air Toxics Standards, but it would lay the groundwork for doing so by weakening a key legal justification for the measure. The long-term impact would be significant: It would weaken the ability of the EPA to impose new regulations in the future by adjusting the way the agency measures the benefits of curbing pollutants, giving less weight to the potential health gains.

In announcing the new proposed rule, the Environmental Protection Agency said in a statement that the costs of cutting mercury from power plants “dwarfs” the monetary benefits. The rule, which acting EPA Administrator Andrew Wheeler signed Thursday, is expected to appear in the federal register in the coming weeks. The public will have 60 days to comment on it before a final rule is issued.

During his first year in office, Trump signed executive orders declaring his intention to dismantle environmental rules. As his second year comes to a close, agencies have set the regulatory wheels in motion to weaken or repeal nearly a dozen Obama-era restrictions on air and water pollution or planet-warming emissions of carbon dioxide, including a plan to reduce the number of waterways that are protected from pollutants and another making it easier for utilities to build new coal plants.

Reworking the mercury rule, which the EPA considers the priciest clean air regulation ever put forth in terms of annual cost to industry, would represent a victory for the coal industry, and in particular for Robert Murray, an important former client of Wheeler’s from his days as a lobbyist. Murray, chief executive of Murray Energy Corp., personally requested the rollback of the mercury rule soon after Trump took office.

Yet the EPA move also had its detractors within the industry. The vast majority of utility companies, which estimate they have already spent about $18 billion installing clean-air technology since the rule was imposed, have said the proposed changes are now of little benefit to them and have urged the Trump administration to leave the measure in place.

“There is nobody who operates power plants who is asking for the rule to go away,” said Jeffrey R. Holmstead, a partner at the law firm Bracewell who served as EPA air chief under the second President George Bush. On Friday, Holmstead said the agency “managed to walk a very fine line” by revising a justification for the rule while leaving pollution protections in place.

The original rule required power plants to reduce emissions of mercury and other toxic pollutants by more than 90 percent over five years. Mercury is a neurotoxin that can damage the brain and nervous system in young children, leading to lower IQ and impaired motor skills. The Obama administration estimated that the measure would prevent as many as 11,000 premature deaths from asthma, other respiratory diseases or heart attacks.

Estimates like that, however, are at the heart of the current dispute. The federal government is required to take into account both the costs and health benefits when considering pollution regulations. Trump administration officials say the Obama EPA inflated benefits and underestimated costs.

The Obama administration found up to $6 million annually in health benefits directly from curbing mercury. But it further justified the regulation by citing an additional $80 billion in health benefits a year by, among other things, preventing the 11,000 premature deaths. That came not from curbing mercury itself but from the reduction in particulate matter linked to heart and lung disease that also occurs when cutting mercury emissions.

The Obama administration also broadly accepted that it’s difficult to put a specific dollar-figure on some health benefits — for instance, avoiding lost IQ points in infants (or other fetal harm), which has been linked to pregnant women eating mercury-contaminated fish. For that reason, the original rule argued against using a strict cost-benefit analysis to decide whether the regulation should be imposed, said Joseph Goffman, executive director of Harvard Law School’s Environmental and Energy Law Program.

The new proposal fundamentally changes that approach. It would consider only the benefits that can be directly translated into dollars and cents.

The proposed rule recognizes that difficult-to-quantify benefits exist, but said “the administrator has concluded that the identification of these benefits is not sufficient, in light of the gross imbalance of monetized costs.”

Ann Weeks, senior counsel for the Clean Air Task Force, an environmental group, criticized the rule as “bean counting,” and said, “This is not tax law. This is public health benefits. It’s a very different calculus.”

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