Legal & Regulatory

EPA Nixes Legal Justification for MATS Rule

The Environmental Protection Agency (EPA) on April 16 withdrew the legal justification for an Obama-era rule that required coal-fired power plants to reduce their emissions of mercury. The Mercury and Air Toxic Standards (MATS) remains in place, but Thursday’s action by the Trump administration could prevent similar regulations from being implemented in the future.

EPA Administrator Andrew Wheeler in a statement said he was following through on the direction of the U.S. Supreme Court, and correcting the Obama’s administration’s “flawed cost finding” that determined the original regulations.

“Under this action, no more mercury will be emitted into the air than before,” said Wheeler. “EPA is following through on the Supreme Court’s direction and correcting the previous Administration’s flawed cost finding in its original rule. Today’s action maintains the mercury emissions standard, and meets the statutory obligation to review the adequacy of those standards. 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.”

The MATS rule, which then-EPA Administrator Lisa Jackson signed in December 2011, required coal- and oil-fired power plants to reduce their emissions of mercury and a range of heavy metals and acid gases, calling those reductions “appropriate and necessary” to protect human health. The rule included compliance deadlines that ended in 2016. Thursday’s action revokes the finding that the emissions reduction measures are “appropriate and necessary.”

The MATS rule came as a conclusion by the Obama-era EPA that said forcing coal- and oil-fired power plants to cut mercury emissions was justified, citing savings to U.S. residents on health care costs that would exceed the compliance costs for coal-fired power generators. Scientists have said mercury can harm pregnant women and put infants and children at risk of developmental problems, and also can cause nervous system problems. It also has been cited as a possible carcinogen.

Sen. Tom Carper (D-Del.), ranking member on the Senate Environment and Public Works Committee, said Thursday’s move “is a truly needless rollback that will only create more uncertainty for our nation’s utilities. It will only lead to worse public health outcomes and, truly, could not come at a worse time.”

Thomas Pyle, president of the American Energy Alliance, in a statement provided to POWER disagreed with Carper, saying, “Today’s rule reconsideration is another in a long line of regulatory corrections made by the Trump administration aimed at more accurately following the letter of the law and balancing the cost-benefit relationship between protecting our health and maintaining a vibrant energy industry, which is essential to keeping prices affordable for American families.”

Different Outlook on Cost Savings

The Obama administration said benefits of the MATS rule, like reducing mercury and other toxins from power plants, would save consumers as much as $90 billion. But the Trump administration said it found the rules would save a much-lower amount, between $4 million and $6 million. Trump administration officials, including Wheeler, a former coal industry lobbyist,  have argued power generators’ costs of adding new pollution controls would outweigh those benefits.

The calculations used at the time by the Obama-era EPA accounted for how pollution-control equipment at coal plants would reduce emissions of several pollutants, in addition to mercury. Trump’s EPA in 2018 said it had reviewed the earlier justification for the rule, and said it should not have included the benefits of reducing pollutants other than mercury. The EPA proposed withdrawing the legal justification but said it did not intend to rescind the rule, a conclusion it upheld with Thursday’s action. With the legal justification withdrawn, coal companies are now expected to challenge the rule’s validity.

“This deeply irresponsible finding seeks to sabotage the rules by inviting court challenges from Wheeler’s former clients and the Trump Administration’s current donors and allies,” said a statement from Earthjustice Attorney James Pew.

The National Mining Association (NMA), which has mounted legal challenges to the MATS rule, was vocal in its support of changes to the regulation when the EPA proposed them in 2018. The NMA called the “the largest regulatory accounting fraud perpetrated on American consumers.”

Utilities Want Rule to Continue

Electric utilities that already have invested in emissions-reduction technology have argued against loosening the MATS rule’s requirements, saying their technology investments are being recouped through increased rates for power consumers. Power producers have been part of a coalition opposed to EPA changes to the rule, saying they had mostly met the rule’s requirements by 2016, and are now concerned the new rule could have a negative impact on the ability of regulated utilities to recoup compliance costs.

The nation’s coal industry, though, has continued to push to repeal the rule, saying it is among the regulations that have led to early closures and retirements of hundreds of U.S. coal-fired units.

The EPA in its own findings behind the MATS rule has estimated that MATS protections would prevent up to 11,000 premature deaths, and more than 130,000 asthma and heart attacks each year.The utility industry, according to the Edison Electric Institute (EEI), has spent $18 billion to comply with MATS. EEI told the EPA last year that its utilities had cut mercury emissions by 86% and total hazardous air pollutants by 96% as a result of the rule.

Janet McCabe, former acting assistant administrator for the EPA Office of Air and Radiation during the Obama administration, told POWER, “This is a sad day for public health protection in the United States and sets a very troubling precedent for the how the EPA evaluates the impact of policy on public health. Though the administration claims otherwise, this ruling puts at risk years of progress to reduce the public’s exposure to toxic pollutants like mercury that accumulate in the environment.”

McCabe, who today is a professor in the Indiana University (IU) School of Law, and director of the IU Environmental Resilience Institute, said, “The MATS rule has been an overwhelming success,” with mercury emissions from U.S. coal plants decreasing 85% from 2006-2016. “The power industry itself asked the administration to leave MATS alone because companies have already complied, but the EPA has decided to move forward anyway. This reflects the administration’s view of all rules intended to protect public access to clean air and water as barriers to business interests. It’s another favor to the coal industry.”

Michael Brune, executive director of the Sierra Club, in a statement Thursday said, “Andrew Wheeler’s attempt to undercut the basis of Mercury and Air Toxics Standards reminds us that not even a global pandemic will stop him from being a coal lobbyist in an EPA administrator’s suit. There is genuine fear and concern rolling through the country right now, but all Wheeler can think about is lining the pockets of his former coal employers and further endangering communities already at high risk to COVID-19. … Wheeler’s attack on life-saving clean air standards will not stop Sierra Club and our partners from holding the coal industry accountable.”

The EPA last week updated the MATS rule to add a subcategory that in effect is designed to save four coal plants in West Virginia and Pennsylvania. The plants burn low-quality coal refuse, or the waste abandoned from years of mining and burning coal in those states. Under the Obama-era MATS rules, the plants did not meet acid gas hazardous air pollutant emissions standards. On April 9, the EPA issued a final rule creating a subcategory for those plants.

That tweak to the rule did not generate much comment because the four plants provide environmental cleanup services in a region with hundreds of millions of tons of coal waste. The plants support the coal refuse-to-energy industry in those states, helping with environmental remediation of coal waste sites.

Science Board Says EPA Ignored Advice

The EPA’s Science Advisory Board (SAB) criticized revisions to the MATS rule last year, saying the EPA had ignored the board’s advice. The SAB cited several scientific studies that back up the findings of economists, with the argument that the EPA failed to consider wide-ranging health benefits that would result from reducing mercury pollution.

“This action, which is a gift to the coal industry at the expense of all Americans, is an attack on public health justified by a phony cost-benefit analysis that purposely inflates the cost of MATS and ignores the value of the human health benefits,” Ellen Kurlansky, a former air policy analyst with EPA’s Office of Air and Radiation, said in a statement.

Matt Oberhoffner, director of the Environmental Defense Fund’s Defend Our Future project, in a statement said he finds the timing of the EPA’s action “particularly galling” as researchers are investigating the effects of pollution on  mortality due to COVID-19. Collin O’Mara, president and CEO of National Wildlife Federation, issued a statement calling the action “an assault on our public health and an absolute abdication of the legal responsibilities of the EPA.”

Darrell Proctor is associate editor for POWER (@DarrellProctor1, @POWERmagazine).

SHARE this article