The EPA disagreed with a White House request to use current data when revising its rule on mercury air pollution, publicly available email exchanges show, which a law professor says could weaken the agency’s legal defense of the regulation.
The regulation involved a second look at the Obama administration’s legal rationale to see whether it was “appropriate or necessary” for the Environmental Protection Agency to limit mercury and other toxic air pollution from power plants.
The Trump administration’s EPA concluded May 22 the mercury and air toxics standards, known as MATS, which were set in 2012 and met subsequently by the power sector, weren’t justified. It reached this decision by using the same health benefits and compliance estimates used in 2012 to set the standards.
The White House Office of Management and Budget asked the EPA to update its cost-benefit analysis, using the most recent findings on actual health benefits of reducing mercury, a known neurotoxin, as well as the costs that power plants incurred since 2012 to meet those limits.
But the emails show the current EPA said it wasn’t obligated to do so under the Clean Air Act.
The EPA’s rationale may fail under the Administrative Procedure Act, which bars federal agencies from making arbitrary decisions, said Melissa Luttrell, a University of Tulsa Law School professor. She said the emails show the agency simply chose not to use updated direct benefits and direct costs of reducing mercury and other targeted air pollutants.
“These emails make it really clear that a shoddy procedure was followed,” Luttrell told Bloomberg Law. “They show that EPA is not considering all the factors that it is statutorily required to consider.”
The EPA, for its part, said it doesn’t comment on the interagency process, but defended its regulation in an email to Bloomberg Law. It said the rule, as finalized, “properly evaluates” the compliance cost to coal- and oil-fired power plants and the benefits from reducing hazardous and air pollutant emissions from those power plants.
“Those power plants remain subject to and must comply with the mercury emissions standards of the MATS rule, which remains fully in effect notwithstanding the revised cost-benefit analysis,” the agency said in the email.
Bloomberg Law, 29 May 2020