EPA rolls back basis for power plant toxic emissions rule

EPA, in a bitterly contested move, today released a final rule that scraps the legal basis for its seminal 2012 regulations on power plant emissions of mercury.

The rule revokes the statutorily required finding that it is "appropriate and necessary" to curb releases of the potent neurotoxin, along with arsenic and other hazardous pollutants, from coal- and oil-fired power plants.

While the actual emissions standards will remain in place, critics predict that today's move opens the door for a coal industry lawsuit aimed at taking them down as well. Perhaps more consequentially, the rule sets a precedent that will likely make it harder to justify future air pollution curbs.

In a statement, EPA Administrator Andrew Wheeler said he was following through on the Supreme Court's direction and correcting the Obama's administration's "flawed cost finding" accompanying the original regulations.


"This is another example of the EPA, under the Trump administration, following the law while making reasonable regulatory decisions that are fully protective of the public health and environment," Wheeler said.

Environmental and public health groups, which are certain to mount legal challenges of their own, fired back with a chorus of condemnation. Joining them was the ranking member of the Senate Environment and Public Works Committee, who alluded to the COVID-19 pandemic.

This "is a truly needless rollback that will only create more uncertainty for our nation's utilities," said Sen. Tom Carper (D-Del.). "It will only lead to worse public health outcomes and, truly, could not come at a worse time."

EPA unveiled the rule almost a year and a half ago, arguing that the Obama administration's underlying rationale for what are formally known as the Mercury and Air Toxics Standards was irredeemably flawed (Greenwire, Dec. 28, 2018). The reason: a heavy reliance on "co-benefits" stemming from reductions in pollutants different from those targeted by the standards to justify the expected compliance costs.

The co-benefits issue had arisen during 2015 oral arguments before the Supreme Court over industry and state lawsuits challenging the standards. In its ruling a few months later, the high court kept the emission limits in place but found that EPA had failed to consider compliance expenses in making the appropriate and necessary determination. The agency responded in 2016 with a "supplemental finding" concluding that cost factors would have made no difference in the decision.

The new rule jettisons that finding and, with it, the original appropriate and necessary determination.

Even for an administration that has championed regulatory rollbacks, EPA's push for repeal was striking and helped spawn an unusually broad-based coalition of opponents. Among them were power producers, which had largely met the standards by 2016 and now fear that the new rule could jeopardize the ability of regulated utilities to recoup compliance costs.

Also critical were economists aligned with environmental and public health groups who accused EPA of ignoring more recent research on mercury's health effects and evidence that compliance has been far cheaper than originally forecast (E&E News PM, Dec. 4, 2019).

Before today, the Trump administration's sole attempt to formally justify repeal of the appropriate and necessary determination was an unsigned six-page memo that cites data at least 7 years old.

The final rule released today also incorporates the findings of a legally required "residual risk and technology" review that no updates to the original standards are needed.

Twitter: @SeanatGreenwireEmail:

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