One of the most successful environmental regulations in U.S. history is under attack from the Trump EPA – and its demise might be accomplished by shady bookkeeping. That is the conclusion of comments filed by Center for Progressive Reform Member Scholars and staff on April 17.
Since it was issued in 2011, the Mercury and Air Toxics Standard (MATS), which establishes rigorous technology-based standards to limit hazardous air pollution from fossil-fueled power plants – has reduced electric utilities' emissions of neurotoxic mercury by 81 percent. Significantly, the rule has achieved these reductions at less than a third of its projected costs while delivering public health savings estimated at billions of dollars each year.
The attack has come in the form of a proposal to undo what is known as the "appropriate and necessary" finding that undergirds the rule. In the provision of the Clean Air Act that authorized the MATS rule, Congress included a special requirement that EPA first find that controlling electric utilities' emissions of these pollutants would be "appropriate and necessary," a precondition the Obama administration had formally met. The Trump EPA now claims that the Obama administration's finding was based on a flawed analysis and seeks to overturn it. Of course, if the proposal succeeds in eliminating the rule's statutory precondition, the rule would become vulnerable to being struck down in court – just the outcome Team Trump has in mind.
So, what is this grave analytical flaw that now threatens to bring down the entire edifice of the MATS rule? According to the EPA's proposal, it's that the original "appropriate and necessary" finding had improperly accounted for "co-benefits" of regulating mercury and air toxics – that is, benefits that, while not the main purpose of the rule, nevertheless flow from its implementation. Because the MATS rule targets toxics like mercury, according to the proposal's logic, only those reductions "count" as direct benefits. Clamping down on those emissions, though, also yields significant reductions in so-called non-hazardous air pollutants, including deadly particulate matter. As the original "appropriate and necessary" finding determined, these co-benefits are worth billions of dollars because they save thousands of lives and prevent countless non-fatal heart attacks, asthma attacks, and missed work and school days.
By removing those lives saved, heart and asthma attacks avoided, and work and school days not missed from the equation, the proposal succeeds in making the MATS rule look like a big loser – on paper, at least. Suddenly, the overblown estimated costs of the rule significantly outweigh the few toxic-related benefits the agency was able to monetize. (These monetizable benefits were just a fraction of a fraction of a fraction of the full air toxics-related benefits that the MATS rule would achieve; the others were arbitrarily and ludicrously assigned a value of $0.) While the proposal cannot erase the value that the MATS rule has in reality, it nevertheless seeks to accomplish the same with fuzzy math and a rigged analysis designed to advance its goal of undermining the rule.
This story is complicated and obscure, and that is largely the point. Cloaked in the technical garb of cost-benefit analysis, the proposal thus serves to shield the EPA's attack on the MATS rule from the view of the broader public and even many policymakers.
CPR Member Scholars Dan Farber, Catherine O'Neill, and Rena Steinzor joined me in submitting comments on the proposal yesterday, which aim to bring some clarity to this fight. Specifically, our comments detail the flawed legal and policy basis for the proposal's approach to considering both the MATS rule's co-benefits and the non-monetizable benefits associated with reducing hazardous air emissions. As we explain, the proposal's conscious disregard of these benefits as part of its analysis was unreasonable, and thus exceeded the agency's legal authority under the Clean Air Act. Our comments further criticize the proposal for relying on flawed and outdated data in its revised "appropriate and necessary" analysis, explaining that its decision to rely on these data was unreasonable because it serves to distort the MATS rule's impacts to such an extent that it fundamentally undermined the integrity of the analysis's conclusion.
Our comments also highlight the proposal's far-reaching implications for how the Trump EPA may seek to distort cost-benefit analyses in the future in order to advance repeals of existing safeguards or to block the implementation of new ones. As we note, the EPA is currently working on a separate rulemaking that aims to overhaul the agency's cost-benefit practices and methodologies more broadly. While its details remain sparse, the overall goal of that broader cost-benefit analysis rule appears to be to make it easier for the EPA to cook the books as the agency seems to have done in the MATS rule proposal. Most significantly, the agency has signaled its intent to use the broader cost-benefit analysis rule to exclude consideration of co-benefits as part of cost-benefit analyses for its future rules. In this way, the broader cost-benefit analysis rule would work in tandem with the MATS proposal to establish a blanket, agency-wide policy that limits consideration of regulatory co-benefits and further shifts the costs of pollution away from polluters and onto the backs of our families and communities.
We are supported in these comments by research from the Environmental Law Clinic at the University of Maryland Francis King Carey School of Law.