With just hours to spare before the government shutdown, Trump’s EPA rushed to publicize one last major piece of regulatory action. What was so important that it warranted release before the shutdown? Surely something that would protect children and the environment, per the agency’s remit.
Of course not! Instead, the agency did the opposite: taking comment on doing away with a rule limiting the amount of mercury that coal plants can dump into the environment.
In the long run, this move likely won’t matter. The rule is currently stuck in the courts after the Supreme Court decided the EPA should’ve considered costs at a different step of the rulemaking process. More importantly, no one is building new coal plants in the US anyway. As E&E’s Ben Storrow reported Wednesday, the coal industry “got clobbered in 2018” and US coal consumption fell to its lowest level of use since 1979. Notably, this decline isn’t due to the regulations that Trump is trying to roll back, but, Storrow writes, because “a host of utilities said it's now cheaper to build wind or solar facilities than it is to run existing coal plants.”
So whether or not new coal plants have to include mercury reduction measures is a moot point if no one’s building new coal plants and current plants already abide by the rule.
While major polluters like coal magnate Bob Murray asked Trump for this lovely gift (in a 2017 meeting facilitated by now-EPA chief Wheeler when he was still Murray’s lobbyist) even utility groups like the Edison Electric Institute aren’t in favor of rolling back the rule, which has already led to a 90% reduction in mercury emissions from coal plants. The group told the Washington Post that the “EPA should leave the underlying...rule in place and unchanged.” A utility industry lobbyist told Reuters that Trump’s move is “like when your four-year-old kid tries to clean up your kitchen – it actually makes things worse. Please stop helping.”
So why make the effort? Why go through the painful bureaucratic process of changing a rule that’s already been effective, already stalled in the courts, and won’t likely make any difference anyway because there’s no new plants to regulate?
Because what the EPA is really taking comment on is the administration’s insidious approach to ignore co-benefits, which could set a dangerous precedent. Like we saw in the Clean Power Plan shenanigans, an easy way to distort the cost-benefit math is to simply not count the co-benefits. That’s what the EPA has done here: making the rule look much more costly than it is by striking from the ledger the billions of dollars of health benefits from reduced PM2.5 pollution. Because yes, everything’s more costly if you don’t actually count the billions of dollars worth of benefits gained from people who don’t cough themselves to death as a result of air pollution.
Obviously, it’s hard to argue against reducing mercury pollution. The last thing we need is a generation of children driven mad and made stupid by mercury exposure. But if you instead claim that based on a narrow and, we’ll say, unique interpretation of the law it’s improper to measure the benefits of PM2.5 reductions when tallying benefits of a mercury rule (even though the two are inseparable in practice) you can claim that your work to try and make sure more kids are exposed to a toxin isn’t driven by the request of your former boss, but by a fealty to Congress and the Supreme Court, as Wheeler did.
Like most all of Trump’s deregulatory agenda, though, this move will have to survive judicial review. And odds are slim to none that a judge is going to agree that ignoring broad swaths of a rule’s benefits is an accurate way to conduct a cost-benefit analysis.
Being wrong won’t stop Trump et al in the near term, but in the long term judges are apt to recognize that the lies they feed to us are as edible as mercury.
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