EPA overhauls mercury pollution rule, despite opposition from industry and activists alike

WASHINGTON - The Environmental Protection Agency changed the way the federal government calculates the costs and benefits of dangerous air pollutants, a shift that could restrict the ability of regulators to control toxins in the future.

The move announced Thursday, one in a series of actions taken by the Trump administration that experts say will probably increase air pollution, comes as the nation is fighting a deadly respiratory virus.

In its controversial decision, the EPA declared that it is not "appropriate and necessary" for the government to limit mercury and other harmful pollutants from power plants, even though every utility in America has complied with standards put in place in 2011 under President Barack Obama.

While the agency technically plans to keep existing restrictions on mercury, the changes mean the government would not be able to count collateral benefits - such as reducing soot and smog - when it sets limits on toxic air pollutants.

Some coal executives lobbied for the rollback, calling the Obama-era rule one of the worst examples of what President Donald Trump has labeled the "war on coal."

But most utilities urged the EPA to leave intact a rule they once opposed. Some share the concerns of environmental advocates, who worry that the change could lead to a legal challenge, prompting some power plants to turn off their pollution controls to save money and ultimately sicken more Americans.

"It's a disgraceful decision coming on the heels of other poor decisions on air quality at a time we can least afford it," former EPA administrator Carol Browner, now chair of the board of the League of Conservation Voters, said in a statement.

Sen. Thomas Carper of Delaware, the top Democrat on the Senate Environment and Public Works Committee, said the move will worsen air quality and harm some of the country's most vulnerable communities.

"This is a truly needless rollback that will only create more uncertainty for our nation's utilities. It will only lead to worse public health outcomes and, truly, could not come at a worse time," Carper said in a statement. "Our country is suffering the grave and growing loss of tens of thousands of American lives to a novel coronavirus that attacks our respiratory systems, and this EPA is advancing rules that will cause more respiratory illness."

The rule in question, known as the Mercury and Air Toxics Standards (MATS), targets a powerful neurotoxin that can affect the IQ and motor skills of children, even in utero. Between 2006, when states began to curb mercury from coal plants, and 2016, when the Obama-era rule took full effect, emissions have declined 85 percent.

The Obama administration initially projected that the industry would spend between up to $9.6 billion each year to comply with the regulation, while society as a whole would save between $37 billion and $90 billion from the prevention of thousands of premature deaths and lost work days.

Those estimates included not just lower mercury emissions but corresponding benefits from less soot and other smog-forming pollutants that contribute to asthma and other respiratory problems. Utilities ultimately paid far less to comply, spending about $18 billion between 2012 and 2018, or $3 billion annually.

But the Trump administration has argued that it is inappropriate to count such "co-benefits" when considering the economic impact of regulation, saying Obama used creative math to justify burdensome new requirements.

"We have put in place an honest accounting mechanism," EPA Administrator Andrew Wheeler told reporters Thursday, adding that "99 percent of the benefits" from the mercury rule came from a reduction in soot. "One would not say it is even rational, never mind appropriate, to impose billions in economic cost in return for a few dollars in health benefits."

America's Power President and CEO Michelle Bloodworth, whose group advocates for coal-fired electricity, said in an email that the agency was right to revise its estimate to include not only "the large costs of the MATS rule but also the negligible benefits" that stem from controlling mercury. "Contrary to what some will claim, this step by EPA does not weaken environmental protections," she said.

Wheeler emphasized that under the revised rule, no more mercury will be emitted into the air than before, because emissions limits remained intact.

But critics have warned that the EPA's declaration that the original rule is unjustified will lay the groundwork for a legal effort to nullify the mercury rule.

"While Administrator Wheeler claims the agency will keep the existing mercury standards in place, the decision to go after the underlying basis for the standards is an invitation for industry to kill these vital rules in court," Rachel Cleetus, a policy director at the Union for Concerned Scientists, said in a statement Thursday.

Even the electric industry is skeptical.

Edison Electric Institute spokesman Brian Reil, whose group represents most of America's power industry, said that if the agency repeals the underlying basis for the rule, it introduces "new uncertainty and risk for companies that still are recovering the costs for installing those control technologies."

Some utilities are concerned that they could face legal challenges over investments made to comply with the Obama-era rule - costs that were often passed to ratepayers. Reil noted the electric power industry has invested more than $18 billion to install pollution controls to comply with existing law and has reduced its mercury emissions by nearly 90 percent since 2010.

The 2011 requirements did more to hasten the closure of coal-fired power plants than any other regulation adopted under Obama. Facing the first-ever limits on these pollutants, companies across the country chose to switch to natural gas or renewable energy rather than invest in costly new pollution controls.

Utilities initially fought the rule in court, along with coal producers and Republican attorneys general. The Supreme Court ruled in 2015 that the EPA had failed to adequately justify the economic impact of the standards. The following year, the Obama administration published an analysis saying the combined benefits of curbing mercury and other pollutants, such as soot, outweighed the costs even when taking industry expenditures into account.