EPA Rolls Back Standards for Mercury Pollution from Coal- and Oil-Fired Power Plants

EPA Rolls Back Standards for Mercury Pollution from Coal- and Oil-Fired Power Plants

EPA Rolls Back Standards for Mercury Pollution from Coal- and Oil-Fired Power Plants

On April 16, 2020, in keeping with its deregulatory agenda, EPA finalized the supplemental cost finding and Risk and Technology review for the Mercury and Air Toxics Standards (MATS), which were finalized in 2012. Put simply, while EPA is downplaying the significance of weakening MATS, there are several ways in which this is incredibly concerning for our health and environment.

First, just a refresher on MATS: the rule was finalized in 2012, and the EPA under the Obama administration found that it was “appropriate and necessary” (also called the “A&N finding”) to tally benefits of reducing mercury pollution and co-benefits of reducing sulfur dioxide, fine particulate matter and other pollutants. The analysis also included benefits to health in dollar amounts. For example, driving down mercury emissions alone would yield a $6 million dollar annual benefit. This was increased to an $80 billon benefit over five years when factoring in gains in avoided heart disease, asthma attacks and other health problems.

Then EPA lost a legal challenge on MATS in 2015, when in Michigan v. EPA, the U.S. Supreme Court found that EPA was also required to consider costs when determining whether it is “appropriate and necessary” to regulate hazardous air pollutants (HAPs), also known as air toxics, from power plants. If you’re interested in reading more about the court challenges to MATS in the past, you can read older blog posts here.

It’s worth noting that the now-bankrupt Murray Energy CEO, Robert Murray, who is also a major fundraiser for President Trump, personally requested that MATS be rolled back in a “wish list” submitted to top Trump officials shortly after Trump took office. So, amid a pandemic, Trump’s EPA decided to deliver on this request.

EPA says all their rollback amounts to is “correcting the previous Administration’s flawed cost finding in the original rule.” They then go on to downplay mercury emissions for the U.S., while at the same time stating that EPA has determined it is not “appropriate and necessary” to regulate HAP emissions from power plants under Section 112 of the Clean Air Act. Under the Residual Risk and Technology Review, EPA found that HAP emissions have been reduced such that residual risk is at acceptable levels, and made no changes to MATS.

What does all of this actually amount to? First, co-benefits are no longer calculated with the abandonment of the A&N finding. Where power plants have already complied with MATS, some might shrug their shoulders. However, as is often the case in this Administration, if you look only at the smoke and show, and not behind the curtain, you might miss the real problem. The real issue here is that by abandoning the “appropriate and necessary” finding for MATS, the door has been open for the fossil fuel industry to justify no or very weak regulations for any pollutant because it is “too costly.”

Finally, since MATS became final, it drastically reduced mercury and other air toxics, which are linked to respiratory issues, heart disease and cancer. MATS is credited with saving as many as 11,000 lives a year. During a health crisis (a PANDEMIC), especially where heart disease and respiratory issues are co-morbidities for COVID-19, and exposure to air pollution also increases risk of death from COVID-19, it is unconscionable that EPA would weaken MATS and abandon the A&N finding.

SCOTUS Denies Appeal Over Embattled MATS Rule

SCOTUS Denies Appeal Over Embattled MATS Rule

On Monday, the Supreme Court of the United States denied certiorari in Michigan v. EPA. This means that SCOTUS rejected Michigan’s and 20 other states, including Alabama, appeal to block the mercury and air toxics standards (MATS). In denying review, SCOTUS upholds the D.C. Circuit’s decision to not vacate the rule.

Almost a year ago I wrote about the SCOTUS decision that resulted in EPA performing a cost analysis for the MATS rule. Because the rule was not invalidated or stayed, crucial protections for air quality and public health have remained in effect.

Mercury Pollution

Image courtesy Moms Clean Air Force (source: http://www.momscleanairforce.org/how-mercury-poisoning-works)

Mercury is a potent neurotoxin that is emitted from coal-fired power plants. It is converted by organisms in nearby water sources like streams and rivers into methylmercury, which is absorbed by fish.

This is what leads to fish advisories like the ones published by the state of Alabama Department of Public Health and our friends at the Coosa Riverkeeper. It has even been linked to lower IQs and can have harmful health effects in children.

Thank you to everyone who told Attorney General Luther Strange to stop wasting taxpayer’s money opposing MATS! Today is a great day for air quality and public health!

Check out this helpful infographic on mercury pollution from Moms Clean Air Force.

MCAF_how_mercury_poisoning_works_Page_1 MCAF_how_mercury_poisoning_works_Page_2

MATS Rule Not Dead, Will Protect Public Health

MATS Rule Not Dead, Will Protect Public Health

In April, I wrote about the new Mercury and Air Toxics Standards (MATS) rule that had just gone into effect:

“GASP strongly supports the MATS rule because it will be crucial in improving air quality and public health. Until recently, there were no national limits on emissions of mercury and other toxics from power plants. […] These toxic air pollutants are known or suspected of causing cancer and other serious health effects including premature death, heart attacks, bronchitis and asthma.”

On June 29, the United States Supreme Court ruled on whether it was “reasonable” for EPA to not consider costs when deciding to regulate mercury and air toxics emitted from power plants. In a 5-4 decision, with Justice Antonin Scalia authoring the majority opinion, the Supreme Court held that the EPA must consider costs before deciding a regulation is appropriate and necessary.

However, the holding was quite narrow: “we need not and do not hold that the law unambiguously required the Agency, when making this preliminary estimate, to conduct a formal cost-benefit analysis […] It will be up to the Agency to decide […] how to account for cost.”

Putting that decision into real world terms, the Supreme Court did not invalidate the MATS rule. They also gave very little guidance on how EPA is to determine costs; EPA has been given deference in how it will account for costs.

Now the MATS rule will go back to the D.C. Circuit Court for further consideration. The D.C. Circuit could invalidate or uphold the rule. Surprisingly, the Supreme Court gave very little insight into how this ruling will affect the Clean Power Plan and its opponents’ key legal arguments. Whether the D.C. Circuit upholds or invalidates the rule could have a direct impact on the future legal challenges to the Clean Power Plan (to be finalized later this summer).

Although the Supreme Court ruled more narrowly than they could have, I still find the arguments in Justice Elena Kagan’s dissenting opinion more persuasive. She correctly points out that it would have been very difficult, even impossible, for EPA to measure costs at the initial rulemaking stage. Justice Kagan also pointed out that the Supreme Court should have reviewed EPA’s regulatory process with caution and care. She correctly asserts that simply because judges might have made different regulatory choices it will not suffice to overturn EPA’s actions where Congress left such discretion up to the EPA.

I most agree with Justice Kagan when she says “the result is a decision that deprives [EPA] of the latitude Congress gave it to design an emissions-setting process sensibly accounting for costs and benefits alike. And the result is a decision that deprives the American public of the pollution control measures that [EPA], acting well within its delegated authority, found would save many, many more lives.”

Although the Supreme Court’s ruling on MATS was disappointing, the mercury regulations are still in place. Moreover, most power plants were forced into compliance when the rule took effect in April, which means the emissions control systems are already installed.

Some media reports have greatly overblown what the ruling means — some declaring it a lethal blow to the regulation of mercury and air toxics. This is simply not the case. It was not a “big win for Alabama Power” and the utilities industry, as the Birmingham Business Journal put it. The LA Times editorial board did a good job of explaining what the Supreme Court ruling did and, importantly, did not do.

It’s important to remember the local context and benefits of continuing to reduce emissions of mercury and air toxics. The Birmingham metro is home to about 1-in-5 Alabamians, as well as one of the nation’s largest mercury polluters: Alabama Power’s Gaston Plant in Shelby County.

How the D.C. Circuit Court rules on remand could affect legal challenges to the Clean Power Plan — which is expected to roll out later this year. This show is not over by any means. In fact, it may be just beginning.

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