House Oversight Shines Light on EPA's Use of 'Mercury Math' to Justify Dangerous Rollback that Hurts Kids

James Goodwin

Feb. 4, 2020

On Thursday, the House Oversight and Reform Committee's Environment Subcommittee will hold a hearing to examine the harm to children posed by the Trump administration's attack on one of the most wildly successful clean air protections in American history: the Obama-era Mercury and Air Toxic Standards (MATS). The rule, adopted in 2012 after literally decades in the making, has reduced coal-fired power plant emissions of brain-damaging mercury by more than 81 percent, acid gases by more than 88 percent, and sulfur dioxide by more than 44 percent. Altogether, its pollution reductions have saved thousands of lives.

The February 6 hearing is part of a series that will highlight the despicably cruel impacts the Trump administration's assault on our safeguards is having on the nation's children. The other hearings will look at the administration's actions on the poverty line calculation, fair housing accountability, and the Supplemental Nutrition Assistance Program (SNAP).

As I've noted in the past, a common thread that runs through much of the Trump assault on our safeguards is the disturbing harms it inflicts on children and the unborn, often to benefit wealthy corporations or to please small government ideologues. Still, when it comes to sheer brazenness and depravity, the attack on the MATS rule stands apart from the rest.

Rather than a straightforward rollback of an Obama-era safeguard (like most of the items in the Trump anti-safeguard agenda), the MATS action is structured more like a diabolical Rube Goldberg machine, designed to inflict as much collateral damage on the EPA's ability to protect public health and the environment as possible. The action targets a unique feature of the MATS rule: The provision of the Clean Air Act that authorized the rule required the EPA to first make a determination that the rule would be "appropriate and necessary." The Trump EPA claims to be only reversing that Obama-era determination while leaving the rule itself in place. Without this legal foundation, though, the dirty work of actually undoing the MATS rule will be left to the coal industry, which is already chomping at the bit to bring litigation against the rule as soon as the Trump EPA finishes toppling the "appropriate and necessary" determination.

But to understand the real motivation behind this action, one need look no further than the Trump EPA's asserted basis for undoing the determination. The claim there is that the Obama EPA relied too heavily on the MATS rule's co-benefits – that is, the rule's additional benefits beyond those directly related to mercury and air toxics – in finding that the rule was appropriate and necessary. As it turns out, one of the great things about cracking down on coal plants' emissions of mercury and other hazardous air pollutants is that it also results in significant reductions of more "conventional" pollutants like particulate matter and ozone. Because we happen to be much better at putting a dollar figure on reductions of those conventional pollutants than we are of hazardous pollutants, those benefits tended to dominate when the EPA was forced to use the stilted, money-focused language of cost-benefit analysis for its "appropriate and necessary" determination.

Unsurprisingly, corporate polluters and their ideological allies are eager to block agencies from considering such co-benefits in their regulatory cost-benefit analyses. Basic mainstream economics demands their inclusion – lives saved are lives saved, after all, but damn it if they don't also help justify stronger regulations that are inconvenient to Big Business. Accordingly, the Trump EPA – under the leadership of former coal lobbyist Andrew Wheeler – hopes to use its attack on the MATS "appropriate and necessary" determination to set an agency precedent for disregarding co-benefits in future rulemakings.

In short, the assault on the MATS rule is part of the Trump EPA's broader effort to make it easier to use dirty accounting tricks – "mercury math" – to attack popular safeguards. Burying those attacks in the regulatory cost-benefit analysis for the rules will help them to cover their tracks by shielding their dastardly deeds from public scrutiny. Further buttressing this effort is the Trump EPA's separate rulemaking to overhaul how the agency conducts cost-benefit analyses for its Clean Air Act rules, which is likely to include a provision barring the use of co-benefits as well.

Along with CPR Member Scholars Dan Farber, Catherine O'Neill, and Rena Steinzor, I submitted comments criticizing the Trump EPA's proposed "mercury math" rule last year. (I've also been working with CPR's Member Scholars to track the Trump EPA's cost-benefit analysis overhaul rulemaking – for more on that, see here and here.) Those comments address three points we hope are considered during the House Oversight subcommittee's hearing on the Trump EPA's "mercury math" rule:

  • The Trump EPA rule will damage children's brains. The major hazardous air pollutant that the Obama-era MATS rule would address is mercury. Mercury is a potent neurotoxin that is particularly harmful to the developing brains of fetuses and children. The one benefit endpoint for mercury pollution that the Obama EPA's "appropriate and necessary" determination was able to measure was the lost lifetime earning potential that children would suffer from mercury pollution-induced IQ degradation. Of course, the harms that children and their families suffer from IQ decreases extend well beyond those earnings losses, and they include the lost quality of life the child experiences (think, no sleepovers with friends or participating in school plays) or the extra money that his family might have to spend to get him through remedial classes. And this doesn't include the harms that mercury pollution causes to adults, such as heart disease and damaged kidneys, or the harm to plants, animals, and ecosystems.
     
  • The Trump EPA rule will poison children's hearts and lungs. Through its treatment of co-benefits, the "mercury math" rule would effectively assign a value of $0 to all the benefits that the MATS rule would have produced from reducing particulate matter and ozone pollution. These benefits (lives saved, ER trips avoided, etc.) are substantial, and certainly not worth nothing. At the time the rule was finalized, the EPA projected it would annually prevent up to 11,000 deaths, 2,800 cases of chronic bronchitis, and 4,700 non-fatal heart attacks. By preventing an estimated 130,000 asthma attacks and 3,100 emergency room visits each year, the rule has been particularly beneficial to children's health. While it is of course impossible to capture these benefits meaningfully in dollars-and-cents terms, it is downright dishonest to claim their worth at $0.
     
  • The Trump EPA rule will not save power plants money. The Trump EPA and its allies have made much hay about the cost of the MATS rule; at the time it was issued, the Obama EPA projected it would cost up to $9.6 billion annually to implement (and given that much of those costs would come from installing pollution control equipment, the absorption of most of those expenses would be frontloaded to the first few years of the rule's implementation, with relatively small operating costs in the years to follow). It appears, though, the Obama EPA's number was a gross overestimate of the costs. In a joint 2018 letter to the Trump EPA opposing the "mercury math" rule, the largest electric utility companies all claimed that they had spent about $18 billion complying with the MATS rule during the first six years of implementation. This implies that during that period, the annual compliance costs were only around $3 billion – and most notably, this came during what was most likely the costliest compliance period for the rule. And why did the electric utilities – the very companies that would supposedly benefit from this rollback – oppose it? Because they had already borne the vast bulk of the compliance costs for the MATS rule, and the only way they could recoup those costs from their customers through future rate settings would be if the MATS rule remains in place.

If the Trump EPA's "mercury math" rule – or really any of these attacks on children – had occurred just five or ten years ago, they would have shocked the nation's conscience. Indeed, recall less than 20 years ago when the public became outraged by the George W. Bush administration's attempt to undercut regulatory protections by using a "senior death discount" that treated the prevention of death of older Americans as worth less money in cost-benefit analyses. The public was so incensed that the Bush administration abandoned the effort, capable as it was of shame. But now, we have become so desensitized to the Trump administration's constant conveyor belt of cruelty that it barely even registers for most Americans when the EPA or any of the other agencies take actions that have the intent and effect of squeezing a few cents more worth of profit for the wealthiest, greediest, and most immoral corporations out of the health and well-being of our children.

And here we are. The damage that the Trump administration's assault on our safeguards will do to this and future generations of children is irreparable. The damage it has done to the character and integrity of this country, if not irreparable, is unlikely to be undone for several generations to come. This is not a good place to be, and it has not made America great.

Read More by James Goodwin
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