In a recent proposal to replace the Clean Power Plan, the Obama administration’s signature initiative to control the greenhouse gas emissions of power plants, the Trump administration made little attempt to sugarcoat the consequences of its decision. The proposal contains three startling admissions: the new policy will kill thousands of people and sicken even more. Those deaths are not justified by any countervailing benefits. And the agency prefers this approach as a matter of policy.
In general, when the government seeks to do something with very bad consequences for the American people, it tries to shade the details to make the negative outcome look more palatable or even desirable. But that is not what the Trump administration did. Instead, the Environmental Protection Agency said loudly and clearly that the Clean Power Plan’s replacement, which seriously weakens the regulation, would have very dire net effects.
EPA tells us that replacing the Clean Power Plan with the Affordable Clean Energy rule that it is proposing will lead to more than 1,000 additional premature deaths per year. It will also produce tens of thousands of additional asthma cases annually, as well as roughly 100,000 lost work days and school absences.
Such grim consequences for the American public could conceivably be justified if other positive effects somehow outweighed the harm. But EPA’s own analysis shows that this is not the case. Instead, when all of the proposals’ consequences — direct and indirect — are taken into account, its costs outweigh its benefits by tens of billions of dollars.
In making this admission, the Trump administration earns some points for candor, though this candor won’t provide much solace to the Americans who will die or be hospitalized, or to their loved ones. And in fact, the actual consequences will be much worse because the new EPA analysis uses inappropriately low damage estimates for greenhouse gases and local air pollution, ignoring economic theory, the recommendations of the National Academy of Sciences, and widely accepted scientific models.
The Trump administration also doesn’t claim to be issuing such a harmful policy only because its hands are tied by Congress. In the Clean Power Plan, EPA interpreted the Clean Air Act to permit flexible carbon limits that reduce emissions by shifting some electricity generation from high-polluting coal to cleaner sources like natural gas plants and renewables. EPA now defends a much narrower interpretation of that statute — one that will result in far less carbon reduction — as a “reasonable” exercise of its discretion.
In other words, EPA is admitting that it prefers a reading of the statute that will cause thousands of premature deaths and scores of asthma hospitalizations. This approach is unlikely to sit well with the courts. The traditional standard of review under the Administrative Procedure Act focuses on whether an action is “arbitrary and capricious.” Causing more harm than good is the hallmark of “arbitrary and capricious” conduct.
Scott PruittEdward (Scott) Scott PruittOvernight Energy & Environment — Biden makes return to pre-Trump national monument boundaries official Trump-era EPA board member sues over firing EPA bans use of pesticide linked to developmental problems in children MORE, the ethically challenged former administrator, would have done things differently. Pruitt aimed to make scrapping the Clean Power Plan seem less offensive, in part by calling into question the counting of the rule’s indirect benefits — such as the massive reductions in local air pollution that were an ancillary effect of a program designed to control greenhouse gases. (Pruitt did support counting the indirect costs of the rule, just not the benefits.)
Pruitt’s successor, Andrew Wheeler, abandoned this position, possibly because it was too difficult to justify. Pruitt’s view that the indirect consequences of regulation are cognizable if they are negative but must be ignored if they are positive was logically untenable and inconsistent with universally accepted economic theory.
Understandably, Wheeler might have been reluctant to embrace a losing argument from his predecessor and to make it his own. But he has pursued the same policy approach, merely doing less to hide the damage it will cause to American society.
The Trump administration has worked diligently to satisfy the wishes of the coal industry, and replacing the Clean Power Plan is its most significant effort yet to lighten the regulatory burdens on coal-fired power plants. But the administration has struggled to find compelling justifications for such moves.
The reason is quite straightforward: when policies are adopted to further the interests of narrow groups at the expense of large harms to the American people, it will be exceedingly difficult, as it should be, to come up with reasoning that is likely to be acceptable to the courts. Before leaving the EPA, Pruitt had failed in that quest repeatedly. Now, Wheeler, pursuing a different set of bad arguments to promote the same detrimental policies, is likely to fail as well.
Richard L. Revesz is Lawrence King professor of law and dean emeritus at New York University School of Law, where he directs the Institute for Policy Integrity.