EPA sued over weakened legal justification behind power plant pollution regulation

EPA sued over weakened legal justification behind power plant pollution regulation
© Greg Nash

A coalition of more than 20 health, environmental and racial justice organizations are suing the Environmental Protection Agency (EPA) over a finding that undermines the legal justification behind a regulation for the emission of mercury and other toxins from power plants. 

The groups sued the EPA on Friday over the finding that it is not "appropriate and necessary" to regulate certain power plant emissions, which was based on changes to an analysis that justified its Mercury and Air Toxics Standards (MATS) rule.

The Trump EPA did not make any changes to the power plant regulations themselves but did change the cost-benefit analysis behind them to make it appear that the Obama-era rule’s costs outweighed its benefits.

ADVERTISEMENT

The Obama administration found in its analysis that benefits from the rule would save consumers as much as $90 billion. The Trump administration, however, said the rules would only save between $4 million and $6 million, and that power producers will spend up to nearly $10 billion on adding pollution controls, so the costs would be greater than the benefits. 

The groups argue that the altered cost-benefit analysis and the reversal on whether regulations are "appropriate and necessary" open the EPA up to lawsuits that could jeopardize the MATS rule. One mining company has already filed such a suit following the changes to the rule’s legal underpinnings. 

Earthjustice attorney Neil Gormley, one of the lawyers on Friday’s lawsuit over the changes, said in a statement that EPA Administrator Andrew WheelerAndrew WheelerAnother toxic EPA cookbook OVERNIGHT ENERGY: EPA questions legality of California's move on gas-powered cars | COVID-19 relief bill would require aided utilities to suspend shutoffs | Trump offshore energy pause includes wind EPA questions legality of California's attempt to phase out sales of gas-powered cars MORE “deceitfully created a bogus excuse for coal companies to challenge the MATS rule in court even though he knows the rule saves thousands of lives every year.”

“If Wheeler’s giveaway to his former clients is successful, our children will be poisoned while we’re preoccupied with the pandemic. This corrupt attack on our communities is immoral and must be stopped,” Gormley added, referring to Wheeler’s former role as a coal lobbyist. 

The Trump and Obama administration analyses differ so greatly because the Trump administration’s analysis only considers “targeted” pollutants like mercury and excludes “co-benefits” from the reduction of additional pollutants that were considered in the Obama administration’s analysis. 

The EPA’s own Scientific Advisory Board criticized this approach last year, saying that its recommendations “do not seem to have been taken into consideration in the published analysis.”

ADVERTISEMENT

An EPA spokesperson declined to comment on the new lawsuit but told The Hill in a statement that the new analysis “properly evaluates the compliance cost to coal- and oil-fired power plants.”

The spokesperson added that the power plants “remain subject to and must comply with the mercury emissions standards of the MATS rule, which remains fully in effect notwithstanding the revised cost-benefit analysis.”

Mercury has been found to damage lungs and the brain and is linked with developmental disorders.

When it rolled out its changes, the EPA said it was correcting flaws in the previous administration’s calculations. 

At that time, Wheeler pledged to defend the rule in court if it faced challenges from outside groups like coal companies, saying, “We defend all of our rulemakings.”

Since then, the agency has also proposed a rule that would change how it conducts cost-benefit analyses under the Clean Air Act going forward. 

The proposal would limit how the EPA weighs carbon pollution and the benefits of taking on several air pollutants at the same time, which critics say will undermine future administrations that want to lessen air pollution. 

Friday’s lawsuit is not the first time health groups have challenged the Trump EPA over rules for power plant emissions. 

Last year, the American Lung Association and the American Public Health Association sued the agency over its replacement for the Obama administration's Clean Power Plan, arguing that the new American Clean Energy rule would do little to lessen power plant pollution.