An Indiana University professor was one of several experts called to testify at a hearing examining a U.S. Environmental Protection Agency proposal that could allow power plants to emit more toxic pollutants into the air and make it easier to deem environmental protection policies too expensive to implement.
Janet McCabe, a professor of practice at the McKinney School of Law, testified about the proven benefits of the Mercury and Air Toxics Standards during a hearing of the House Committee on Energy and Commerce’s Oversight and Investigations Subcommittee May 21.
The MATS rule was enacted in 2012 and was the first federal standard to require power plants to limit emissions of toxic air pollutants like mercury and arsenic.
In Dec. 2018, acting EPA administrator Andrew Wheeler approved a proposed revision of the supplemental cost finding for the MATS rule.
McCabe, who served as acting assistant administrator for the EPA’s Office of Air and Radiation during the Obama administration, told the committee the EPA’s proposal would kick the legal legs out from under the MATS rule.
“If EPA finalizes this rule, we reasonably expect this approach to devalue health benefits in every EPA proposal,” McCabe said. “This program has been a success. Mercury emissions from coal plants have gone down and mercury levels in water in fish have decreased.”
Power plants are currently the biggest source of mercury, acid gases and many toxic metals. Mercury is extremely toxic to humans in all its forms and can cause a wide variety of adverse health conditions ranging from behavioral changes to death. Mercury has also been linked to birth defects and “spontaneous abortions” in expectant mothers.
The MATS rule forced the companies to ensure that new power plants would limit mercury and other air toxics into the air, and made them upgrade older plants by installing emissions controls.
The EPA estimated the MATS rule reduced mercury emissions by 90%, acid gas emission by 88% and sulfur dioxide emissions by 41%.
Before the MATS rule was implemented, it faced several legal challenges. In 2015, the U.S. Supreme Court found that the EPA had acted within its legal mandate to regulate air emissions, but should have considered the costs of implementation in order to comply with the Clean Air Act, which requires the EPA administrator to determine whether regulations are “appropriate and necessary.”
The U.S. Court of Appeals for the District of Columbia Circuit allowed the EPA to enforce the MATS rule while the EPA reworked the rule to include an “appropriate and necessary” cost/benefit finding.
Companies invested millions of dollars to comply with the regulation.
“This program is in the rear-view mirror for utilities and contrary to the EPA’s mission to protect health and the environment,” said McCabe.
The current EPA proposal seeks to reassess the way a regulation like the MATS rule is deemed to be “appropriate and necessary,” a move which threatens to give the EPA the power to deem any regulation as too expensive to implement.
“EPA used the best information available and followed longstanding OMB guidance to project the costs and benefits of the rule,” McCabe said. “That meant considering the full range of health benefits including reductions of all harmful air pollutants, monetized or not.” EPA now proposed to conclude the costs outweigh the benefits looking at the very same information it considered in 2011 and 2015, but using a radically different approach to how it considers benefits.”
Rep. Scott Peters, D-Calif., asked McCabe why the EPA wanted to go forward with the proposal despite opposition from the regulatory industry the MATS rule regulates.
“I can’t speak for EPA. I don’t know, but I can think of two reasons why they would do this,” McCabe said. “One is that this administration has made very clear that they will do anything they can to help the coal industry. The other reason for doing this is to use it as a flagship to inaugurate this new way of looking at devaluing the full range of benefits.”
The EPA was invited to the hearing, but did not attend.