The EPA finalized a rule that will eventually make it easier for oil and coal-fired power plants to release mercury and other toxic air pollutants, despite bipartisan objection and some industry pushback.

While the rule set in place Thursday does not eliminate the Obama administration standards outright, it alters their legal justification by recalculating the costs and benefits of the so-called Mercury and Air Toxics Standard, or MATS. 

“Under this action, no more mercury will be emitted into the air than before,” EPA Administrator Andrew Wheeler said.

But that could happen eventually.

He said the agency was acting in response to a 2015 Supreme Court ruling that the EPA had not adequately considered the costs of the rule. The court did not strike down the rule, but directed the EPA to review its cost-benefit analysis. By that time, companies had already invested in the technology needed to comply with the rule.

The new rule deems the standards more costly than beneficial to public health, opening the door for legal challenges by coal companies that have blamed the standards for their financial troubles. That could make it easier to set the rule to be aside in court, allowing more mercury to be emitted.

Before joining the EPA, Wheeler was a lobbyist with the law firm Faegre Baker Daniels LLP, where he lobbied against environmental regulations, including for coal mining company Murray Energy.

Robert Murray, who owns the coal company, which donated $300,000 to President Donald Trump’s inauguration, pushed for the changes early on in the administration.

According to the Center for Responsive Politics, which tracks lobbying activity, Murray’s company was Wheeler’s most lucrative client, paying the firm between $160,000-$559,000 every year from 2009 through 2017.

The company spent $470,000 in lobbying in 2019, and filed for bankruptcy protection in October. 

Caronavirus

The changes come as the country combats the coronavirus, which causes an illness  more deadly to people with respiratory health problems, including those resulting from long-term pollution exposure. Mercury is linked to myriad health problems, including severe damage to the lungs, brain and other organs, and damage to fetuses.

“Our country is suffering the grave and growing loss of tens of thousands of American lives to a novel coronavirus that attacks our respiratory systems, and this EPA is advancing rules that will cause more respiratory illness,” Sen. Thomas R. Carper, the top Democrat on the Environment and Public Works Committee, said Thursday. 

In November, Carper and Sen. Lamar Alexander, R-Tenn, defended the Obama administration rule in a USA Today opinion piece and urged the EPA not to change its legal underpinnings, warning of the public health damage that could result·  

When the Obama EPA finalized the rule in December 2011, it estimated it would cost utilities roughly $9.6 billion a year to comply with the rule and generate between $37 billion and $90 billion in public health benefits. The EPA’s analysis shows the rule has helped cut mercury emissions by about 86 percent since 2010.

The Trump EPA said it had determined that it was not “appropriate and necessary” for the agency to regulate hazardous air pollutants under certain sections of the Clean Air Act.

The National Mining Association, which challenged the mercury rule in court, applauded the changes when the EPA proposed the changes, saying the previous rule was “a pivotal, destructive and illegal assault on the coal industry.” 

[Advocates see flaws as EPA eases compliance rules in crisis]

“While the coal-fueled plants that were forced out of operation by this illegal rule can’t be resurrected, it’s an important lesson for the future,” the group said.

As the nation grapples with the coronavirus pandemic, a group of Democrats earlier this month wrote to the EPA asking the agency to halt any action on rules aimed at rolling back clean air protections, including the mercury and toxic pollutants rule. Still, the EPA has been working to quickly roll back clean air protections, including tailpipe standards and earlier this week deciding not to update smog standards. 

Easing rules

The agency has also come under fire for relaxing its enforcement of air and water pollution rules during the pandemic.

Ellen Kurlansky, who worked as an air policy analyst at the EPA’s Office of Air and Radiation from 1996 until 2018, described the latest action as a “gift to the coal industry at the expense of all Americans.”

She said the EPA is justifying its decision with a “phony cost-benefit analysis that purposely inflates” the cost of  the rule and ignores the value of the human health benefits.  

“Based on that deception, EPA says that the benefits of MATS aren’t worth the cost,” Kurlansky, who participated in the writing of the original rule, said. “Those benefits include the value of thousands of lives saved by MATS each year, hundreds of thousands of illnesses avoided each year, and avoided damage to the developing brain of the unborn.”   

There will likely be court challenges from environmental and public health advocates. Wheeler said Thursday the EPA is prepared to defend its action.  

Mary Anne Hitt, senior director of Sierra Club’s Beyond Coal campaign, said the group will stand firmly against the “dangerous” decision.  

“Every electric utility in our country is already in compliance with these life-saving safeguards, which makes it clear just how determined former coal lobbyist Andrew Wheeler is to deliver every item on the coal industry’s wish list — even if it threatens the health of pregnant women and young children,” Hitt said, in anticipation of the EPA announcement.  

Some companies and industry groups have asked the EPA to leave the standards unchanged, arguing that utilities have already invested in the costly technology to comply, and changing the standards will create uncertainty and an uneven playing field.  

When the EPA proposed changes to the rule in 2018,  several trade groups, including the Edison Electric Institute, American Public Power Association and the National Rural Electric Cooperative Association, wrote to the EPA to object.  

“The industry already has invested significant capital — estimated at more than $18 billion — and states are relying on the operation of these controls for their air quality plans,” the groups wrote, urging the EPA to leave the underlying MATS rule in place and focus instead on making technical revisions to create certainty for the industry.  

Benjamin J. Hulac contributed to this report.