EPA Says Obama Era Mercury Rules Are Not Justified Based On Benefits

Published February 18, 2019

The U.S. Environmental Protection Agency (EPA) announced it has determined the Mercury and Air Toxics Standards (MATS) imposed by the Obama administration in 2011 were not “appropriate and necessary,” the legal standard for regulation under the 1970 revisions to the Clean Air Act (CAA).

As a result, EPA opened a 60-day public-review period seeking comments on whether “we would be obligated to rescind.”

EPA’s decision came after the agency changed how it calculates MATS’ human health and environmental benefits. EPA found the costs to industry from installing required pollution controls to limit mercury and certain other air toxics are $7.4 billion to $9.6 billion per year and the health and safety benefits are between $4 million and $6 million per year.

Legal Tug of War

The Obama administration imposed MATS in 2011. After it became clear Congress would not pass legislation limiting carbon dioxide emissions, the White House enacted MATS to reduce greenhouse gas emissions from coal power plants by limiting mercury emissions, clearly covered under CAA, as a proxy for carbon dioxide.

Industry groups sued to block the rule, arguing it did not meet statutory requirements concerning costs, in a case that reached the U.S. Supreme Court in 2015.

The Court agreed, ruling five to four the high cost of the exceedingly stringent limits on mercury emissions from power plants enacted by the Obama administration were not justified by the negligible benefits. The Court directed EPA to reconsider the rule and revise it to include consideration of costs.

“EPA strayed well beyond the bounds of reasonable interpretation in concluding that cost is not a factor relevant to the appropriateness of regulating power plants,” wrote the late Justice Antonin Scalia in the Court’s June 26, 2015 majority opinion. “It is not rational, never mind ‘appropriate,’ to impose billions of dollars of economic costs in return for a few dollars in health or environmental benefits. Statutory context supports this reading.”

A few months later, the Obama administration reaffirmed the rule, estimating MATS would prevent 11,000 premature deaths and produce $80 billion in health benefits annually.

Co-Benefits Don’t Count

The Trump administration’s review determined almost all the lives saved and health benefits the Obama EPA calculated as accruing from MATS came not from curbing mercury itself but as a co-benefit from reducing particulate matter and other pollutants that would also decline as power plants reduced mercury emissions. Because these pollutants were already being reduced under regulations directly targeting them, Trump’s EPA determined the Obama administration had unjustifiably double-counted MATS benefits to justify persisting in enforcing the rule despite the Supreme Court’s ruling.

EPA’s revised procedures eliminate co-benefits from the count.

Counting only the direct potential benefits of cutting mercury, EPA’s regulatory filing states the agency “has concluded that the identification of these benefits is not sufficient, in light of the gross imbalance of monetized costs.” In proposing to reconsider and rescind MATS, EPA says it is only complying with the letter of the law and the Supreme Court’s 2015 ruling.

‘Blatant Misuse’ of Data

In imposing MATS, the Obama administration was twisting science for political ends, says Jay Lehr, Ph.D., science director with The Heartland Institute, which publishes Environment & Climate News.

“The Obama administration’s alteration of the mercury standard was intended to make it essentially impossible to burn coal for energy in this country, in pursuit of inane climate goals,” Lehr said. “It was a blatant misuse of unsupportable science.”

“At present levels, mercury is not damaging the environment or human health,” said Lehr.

The Trump administration’s decision to reconsider MATS is well-founded, says E. Calvin Beisner, Ph.D., founder of The Cornwall Alliance for the Stewardship of Creation.

EPA’s announcement in late December it intends to revise the cost/benefit findings behind MATS is dead-on right,” said Beisner. “The Obama EPA’s own estimate of the cost of implementing MATS exceeded its estimate of the benefits by 1,233 to 2,400 times—an absurdity papered over by the accounting trick of double-counting as ‘co-benefits’ reductions in non-mercury emissions though those reductions were already achieved under other regulations.

“It’s way past time for the EPA to get real about mercury, and December’s announcement is a good first step,” Beisner said.

H. Sterling Burnett, Ph.D. ([email protected]) is a senior fellow at The Heartland Institute.