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EPA proposal would put federal mercury rules on shakier legal ground

PHOTO BY U.S. Environmental Protection Agency / Flickr


Changing how benefits are calculated could undercut the justification for mercury standards and other rules.

A Trump administration proposal to change how costs and benefits are calculated for federal mercury emissions rules could make them more vulnerable to a legal challenge.

The Environmental Protection Agency announced Dec. 27 that it would leave the federal Mercury and Air Toxics Standards (MATS) rules in place. However, new number-crunching would undermine the justification for the rule.

What would the proposed rule change do?

The EPA would recalculate the costs and benefits of the rules, drastically lowering the estimated benefits. The agency determined in 2016 that the standards’ quantifiable benefits ranged from $33 billion to $90 billion annually. Under the new proposal, those benefits would be adjusted to about $4 million to $6 million annually.

Much of that difference came from so-called co-benefits — positive health outcomes and other consequences that result as reductions in one type of contaminant, such as mercury, necessarily reduce other pollution as well.

Why is the EPA leaving the final standards in place?

Most power plants and other facilities have already complied with the standards. Some companies also decided to close plants rather than comply with the rules. FirstEnergy did that with its Ashtabula, Lake Shore and Eastlake plants, for example.

Why then does the recalculation matter?

A cost-benefit justification is necessary support for the underlying rule under a 2015 Supreme Court decision agreeing with the National Mining Association and others that the EPA should have considered the costs before finalizing the MATS rules. The EPA did that in 2016. But if new calculations negate the cost-benefit finding, a court might say the rule is no longer justified.

“The misguided proposed changes leave MATS legally vulnerable and foolishly make it harder to strengthen mercury pollution reduction standards in the future to better protect children’s and women’s health, and Great Lakes fisheries,” said Howard Learner, president and executive director of the Environmental Law & Policy Center.

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