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EPA to make it harder to tighten mercury rules in the future

Proposed changes could revamp how the government values human health.

An American Electric Power coal-burning plant in Conesville, Ohio. (Michael Williamson/The Washington Post) (Michael S. Williamson/WASHINGTON POST)
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The Environmental Protection Agency on Friday proposed a major change in the way the federal government calculates the costs and benefits of dangerous air pollutants, arguing that authorities should exclude some of the public health benefits stemming from new rules.

The proposal, which revisits a 2011 rule limiting mercury emissions from coal plants, argues EPA lacked justification to curb the neurotoxin in the first place because many benefits stemmed from the overall drop in air pollution that would occur once power companies adopted new technologies. The EPA is not reversing the Obama-era standards — with which the industry has already complied — the agency wants to alter the underlying calculations to set a precedent for future public health rules.

The proposal represents a balancing act, of sorts. In keeping in place the Obama-era standards on mercury emissions, Trump officials are acknowledging the billions of dollars companies have already spent in upgrades to comply. But at the same time, the administration is advancing a broader effort to narrow what the government counts as benefits when crafting air rules.

If adopted, the change would prevent regulators from calculating positive health effects — known as “co-benefits” — that come from reducing pollutants other than those being targeted. The shift could have implications for public health protections across the federal government, experts said.

“EPA has managed to walk a very fine line,” said Jeffrey Holmstead, a partner at the firm Bracewell who represents several utilities and who headed the agency’s air and radiation office under President George W. Bush.

While many power companies “actually lobbied the administration to leave” the rule in place, Holmstead said, “the Trump folks couldn’t bring themselves to defend” the previous administration’s conclusion that the rule was “appropriate and necessary.”

Under President Barack Obama, the EPA estimated that it would cost utilities $9.6 billion a year to comply with the new standards, while limiting mercury would translate into merely $6 million in public health benefits. But the EPA estimated at the time that other factors, such as reductions in soot and nitrogen oxide that would accompany cuts to mercury pollution, would save between $37 billion to $90 billion in annual health costs and lost workdays by preventing as many as 11,000 premature deaths and 4,700 heart attacks.

The latest EPA analysis argues that it was inappropriate to factor in such co-benefits.

“I just think it’s a little fuzzy math when you say, ‘Reduce mercury and we have all these other benefits over here,’ as the shiny object,” EPA acting administrator Andrew Wheeler said in an interview with The Washington Post this fall.

As a result, the agency now estimates that the costs of complying with the rule far outweigh its direct benefits of $4 million to $6 million annually. In a statement, the agency said it was “providing regulatory certainty by transparently and accurately taking account of both costs and benefits” of the mercury rule.

That rationale came under fire swiftly on Friday, suggesting that the rule could face a court challenge if it is finalized.

“There is no legitimate justification for this action,” Harold P. Wimmer, chief executive of the American Lung Association, said in a statement, adding that the regulation had been effective not just in limiting mercury, but also emissions of carcinogens such as arsenic, chromium and nickel, as well as toxic acid gases that form particle pollution, which causes asthma attacks, heart attacks and premature death. “EPA’s proposal to undermine the Mercury and Air Toxics Standards is one of its most dangerous efforts yet.”

Celia Chen, director of the Dartmouth Toxic Metals Superfund Research Program, said that now is not the time for federal regulators to make it tougher to tighten standards on emissions of mercury.

“As the scientific understanding of mercury continues to advance, we should not limit ourselves in the ongoing fight against this dangerous pollutant,” Chen said in a statement. “Regulators need the tools to strengthen mercury controls in the future if needed. Any true assessment of the benefits to the environment and public health that we have seen with controls on mercury pollution indicate that they are worth billions of dollars, not the mere millions that have been underestimated.”

Mercury has been shown to cause an array of potential health problems, including certain neurological disorders, cardiovascular harm, endocrine disruption and weakened immune systems. Children exposed to mercury while in the womb can suffer serious cognitive impairment. EPA itself warns Americans that they should limit their consumption of fish high in mercury, on the agency’s website.

Trump taps Andrew Wheeler, former coal lobbyist, to head EPA

Coal-fired power plants rank as the nation’s single biggest emitter of mercury. Over time, emissions of the pollutant also build up in fish, whose elevated levels of mercury are absorbed by people who eat them.

In the 1990s, Congress gave the EPA authority to regulate the toxic metals that are the byproduct of burning coal, but it took the agency years to develop a standard. In 2015, the Supreme Court dealt a major blow to the Obama administration’s efforts, saying U.S. officials failed to properly consider economic costs related to their proposal.

The court, in a 5-to-4 decision, sent the rule back to the U.S. Court of Appeals for the D.C. Circuit with instructions that it should be sent back to the EPA in light of this cost-benefit analysis. In response, the EPA in April 2016 issued a final analysis detailing how the rule’s benefits outweighed its costs. That finding became the subject of litigation.

Last spring, the EPA asked a federal court to delay a case challenging the rule brought by 15 states and several companies. On Friday, the EPA said its latest proposal aims to address the Supreme Court’s critique of the previous administration’s approach.

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.”

EPA issued the proposal just hours before the agency is slated to shut down, at midnight, due to the ongoing budget impasse between President Trump and congressional leaders.