Testimony

Ann Jaworski

Restoring Reason in Air Quality Regulations

ELPC Testifies In Support of EPA Finding that It Is “Appropriate and Necessary” to Regulate Hazardous Air Pollution from Power Plants

Tell EPA to Reaffirm the Importance of Regulating Hazardous Air Pollutants through MATS

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The 2012 Mercury and Air Toxics Standards (MATS) have been a victory for environmental law and public health, helping to reduce dangerous pollutants and neurotoxins across the country and in the Great Lakes region. Under the Trump administration, however, the EPA revoked the finding that it is “appropriate and necessary” to regulate power plants’ toxic air pollution in the first place. Their lopsided cost-benefit analysis ignored numerous health and equity benefits and injected unnecessary legal uncertainty into a regulatory regime that has successfully slashed toxic air pollution for years. Now, the EPA is working to restore reason and reverse the misguided Trump-era rule. On February 24, I testified in support of EPA’s proposal to find that it is appropriate and necessary to regulate hazardous air pollutant (HAP) emissions, including mercury, from coal-fired power plants. Here’s some background on how this all works and what it means for our air.

The Clean Air Act and Hazardous Air Pollution

Section 112 of the Clean Air Act requires EPA to regulate the emission of hazardous air pollutants (HAP) such as mercury, lead, benzene, and other carcinogenic, neurotoxic, and highly dangerous pollutants from any source (e.g., cement factories, paper mills, power plants) that emits more than a certain amount of these pollutants each year. One of the HAP that received the most attention is mercury.

In addition to being breathed in, mercury emissions can settle on lakes and streams, where it is absorbed by aquatic plants and animals. The mercury then “bioaccumulates” as it moves up the food chain—larger fish absorb the it in the smaller fish they eat, etc. Mercury in fish poses a threat to any humans eating those fish, and is of special concern to pregnant people, because developing fetuses’ brains can be permanently harmed by mercury exposure.

Section 112 creates an extra step for EPA before it can regulate HAP emissions from coal power plants: first, EPA has to find that it is “appropriate and necessary” to do so. The Appropriate and Necessary Finding has a long and tangled history, involving numerous court decisions, but the abbreviated history that has led us to this point is as follows.

History of the Appropriate and Necessary Finding

In 2012, EPA issued a rule that both made the Appropriate and Necessary Finding and issued emissions standards for power plants that are known as the Mercury and Air Toxics Standards (MATS). The 2012 Finding was challenged in court, and the Supreme Court ruled, in Michigan v. EPA, that EPA was required to consider costs when determining whether regulation was “appropriate,” something it did not explicitly do in the 2012 Finding. The Court then remanded the Finding to EPA to consider costs, while leaving the MATS in place.

In 2016, EPA issued its “Revised Finding” that yet again found it appropriate and necessary to regulate power plant HAP emissions, while taking into consideration the cost information available at the time of the 2012 Finding. In the 2016 Revised Finding, EPA preferred to weigh costs against all the qualitative benefits of reducing HAP emissions, pointing out that there were many difficulties to monetizing the quantitative benefits. Nonetheless, EPA provided data from a 2011 cost-benefit analysis that was able to monetize benefits associated with reducing two categories of air pollution: mercury and particulate matter. Babies born to recreational fishers would not suffer reduced IQ points from fetal mercury exposure, which it valued at $9 million. In addition to mercury and other HAPs that were the focus of the standards, required emissions controls technology also worked to filter out other non-HAP particles which harm human health. The 2011 analysis found that the monetized value of all the lives saved and heart attacks and hospitalizations avoided because of particulate matter reductions was $37–90 billion, greatly outweighing the estimated $9.6 billion compliance costs.

The monetized value of all the lives saved and heart attacks and hospitalizations avoided because of particulate matter reductions was $37–90 billion, greatly outweighing the estimated $9.6 billion compliance costs

In 2020, under the Trump Administration, EPA issued a rule that revoked the finding that it is “appropriate” to regulate power plant HAP emissions (while leaving in place the finding that it is “necessary” to do so). That Rule also left the MATS emissions controls themselves in place—the Clean Air Act requires that once a HAP source has been regulated under Section 112, it cannot be removed from the list of regulated sources unless the risks from that source are below a certain level, which EPA could not show.

The 2020 rule stated that EPA was weighing concerns differently than it had in 2016, and that the only correct way to determine whether regulation was appropriate was to compare only the HAP benefits of regulation that had been monetized in 2011 (the avoided IQ loss) against the costs that were estimated in 2011. Because the costs outweighed that limited set of benefits, EPA found that it was not appropriate to regulate, even though this cost-benefit analysis completely ignored the many benefits that were not monetized (including the vast majority of HAP reduction benefits) and the benefits of reducing non-HAP pollution (which could be monetized and which far outweighed the costs).

EPA’s Current Proposal

EPA is now proposing to revoke the 2020 rule and to restore the finding that it is appropriate and necessary to regulate power plant HAP emissions. EPA is taking a new “totality of the circumstances” approach, where the agency considers “all of the advantages of reducing emissions of HAP (i.e., the risks posed by HAP) regardless of whether those advantages can be quantified or monetized.” This approach is more suited to making the appropriate and necessary determination than the 2020 Rule’s omission of these benefits because, as EPA notes, “almost none” of the benefits of reduced HAP emissions can be precisely monetized due to the lack of scientific studies determining the exact relationship between amount of pollution exposure and health outcomes. Under this totality of the circumstances approach, EPA also considers the distributional benefits of reducing HAP emissions, the health effects of which disproportionately burden environmental justice communities. EPA’s latest proposal, unlike the 2020 rule, considers the effects on those individuals who are most exposed to pollution—such as subsistence fishers, and people living closest to power plants–and to those who are most sensitive to pollution–such as the developing fetuses of pregnant people who eat mercury-tainted fish.

EPA’s latest proposal, unlike the 2020 rule, considers the effects on those individuals who are most exposed to pollution—such as subsistence fishers, and people living closest to power plants–and to those who are most sensitive to pollution

EPA proposes that regulating power plant HAP emissions is appropriate, whether EPA looks at the cost and benefit information that was available in 2011 or at newer information, which shows even greater benefits and significantly lower costs than were estimated. EPA proposes to find that “the benefits associated with regulating HAP alone outweigh the costs without consideration of non-HAP benefits,” but recognizes that the lives saved and asthma attacks avoided by the reduction of particulate matter pollution are an important consideration that also weighs in favor of an appropriateness finding.

EPA’s proposal to reaffirm the appropriate and necessary finding recognizes the importance of health benefits that can’t be easily translated into dollars and will remove any legal uncertainty about whether EPA has the authority to continue to enforce the MATS and to strengthen them in a future rulemaking.

Future Opportunities to Reduce Toxic Air Pollution

Power plants remain the largest domestic emitter of mercury and some other HAPs, despite the fact that the MATS have slashed emission of many HAPs by as much as 80–90%. EPA is intending to complete a risk and technology review of the MATS, as required by Section 112 of the Clean Air Act and directed by President Biden in an executive order. This review will examine whether the risk remaining to human health after implementation of the emissions controls required by MATS is acceptable and will also determine whether technological advances exist to further reduce toxic air emissions. EPA should complete this review soon and strengthen the MATS to better protect public health and the environment.

Ann Jaworski,

Staff Attorney

Ann Jaworski is a staff attorney at ELPC, joining in 2018.

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