Written Testimony before the Oversight and Investigations Subcommittee of the U.S. House Committee on Energy and Commerce
The Mercury and Air Toxics Standards (MATS) rule is one of the great success stories of air pollution reduction and public health protection. Mercury is one of the most toxic substances on earth, but MATS has successfully reduced Mercury emissions from coal plants by 85% since it was implemented in 2011. This is especially important for protecting pregnant mothers and children who are the most affected by Mercury exposure. Unfortunately, the current EPA is proposing to gut MATS, despite its successful implementation, widespread support, and effective outcomes on reducing both mercury and many other deadly air pollutants. This is concerning for several reasons, so I felt it was critical to testify to the house committee on energy and commerce and share my expertise with the public.
I am a Professor at the Indiana University McKinney School of Law and Senior Law Fellow at the Environmental Law and Policy Center. I spent nearly eight years in the U. S. Environmental Protection Agency’s (EPA) Office of Air and Radiation, first as the Principal Deputy Assistant Administrator and then as the Acting Assistant Administrator. Before that, I spent two decades working in state government on air quality and other environmental issues, at the Indiana Department of Environmental Management and before that at several agencies in Massachusetts. While at EPA I worked on a wide range of Clean Air Act programs and, in particular, on the development of the Mercury and Air Toxics Standards.
MATS has deep regulatory roots, from administrations before my time who laid the legal groundwork and determined the necessity of this rule. The path of mercury regulation was a long and winding one, but it was guided by scientific research, sound economic analysis, and conversations with industry. Under the MATS rule, coal plants installed modern pollution-control technology across the country, and have seen successful results in reduced Mercury emissions. Compliance with environmental rules varies widely across industries and requirements, but timely 100% compliance is rare. This is a success story for our country, and the issue is in the rear view mirror for industry. Even now, the electric utility industry has stood up in defense of MATS, and written to the EPA to ask they be allowed to “continue full implementation of MATS.”
If everyone from the energy industry to the public health community wants to see MATS continue as is, what is going on here? EPA is not looking at any different or updated information. It is not considering the reasonableness of the standards or the recent history of compliance and costs incurred by the industry (less expensive than expected). Rather, EPA is going back in time and deciding to take a radically different approach to how it considers costs and benefits in the rule. This approach drastically discounts the public health benefits side of the balance sheet, departing from years of practice and current Office of Management and Budget guidance. EPA presents this almost as if it has no choice. To the contrary, the agency is choosing to paint itself into this corner, and their choice has implications not just for this rule but for every rule it promulgates going forward.
This will open the door to rolling back MATS in its entirety. It will also create a highly significant policy change, by proposing that it is inappropriate to consider equally the health and other benefits associated with any pollution reductions other than those specifically targeted by MATS. This approach could have devastating affects on future rule-making, which is no small matter. These rules affect disease, illness, and injury for people all across this country, and they must be based on consistent, sound analysis. If EPA finalizes this rule on this basis, it will be a highly significant policy step with ramifications far beyond the MATS rule.
Mercury emissions from US coal plants have gone down 85% between 2006 and 2016, and mercury levels in water and fish have also decreased. These reductions are hugely important, particularly in my region of the country, where the Great Lakes provide drinking water, jobs, food, and recreation to millions. Some Great Lakes states have even seen reductions of up to 90%. That sounds like a successful program to me. This is in the rearview mirror for the utilities. It is a public health success. This proposal would be contrary to EPA’s mission, which is to protect public health and the environment, and it should not be finalized.