April 24, 2019 Liz Borkowski, MPH 0Comment

Of the more than 300,000 public comments submitted to EPA regarding a proposed undermining of air pollution rules, several criticized the agency for something that’s become a disturbing trend under the Trump administration: Ignoring evidence that demonstrates a need for regulation.

Specifically, EPA proposed to reverse its 2016 supplemental “appropriate and necessary” finding underpinning the Mercury and Air Toxics Standard (MATS). What’s changed since 2016? Well, a former coal lobbyist is now running the agency. And under his leadership, EPA has conducted a new analysis of costs and benefits that ignores important evidence about both.

Evidence ignored

In what seems to be part of a larger de-regulatory strategy, EPA wants to ignore “co-benefits” of MATS regulation. Regulating one kind of pollution, like mercury, often results in a drop in other forms of pollution that aren’t necessarily the regulation’s target – e.g., particulate pollution – which is a win for public health. But now, in a departure from standard practice, EPA doesn’t want to consider the health benefits attributable to the reduction of other pollutants. By taking an inappropriately narrow view of what MATS has accomplished, it’s now ignoring $89 billion of particulate matter reduction benefits because they aren’t the target of MATS.

Those aren’t the only benefits that the proposal ignores. The Union of Concerned Scientists’ Julie McNamara explains that when EPA produced its 2011 MATS evaluation, “the agency was only able to fully quantify a single effect, for a single exposure pathway, for a single pollutant. In the past, the EPA acknowledged this significant omission, but because these unquantifiable benefits further supported the agency’s conclusions that regulation was appropriate, the lack of quantification was not a problem.” Now, though, while the agency still acknowledges that there are unquantified benefits – like avoided neurological damage in developing brains, chronic diseases, and some cancers – attributable to MATS, they don’t bother to try to understand the implications for their conclusion. The new analysis also relies on an outdated estimate of compliance costs, which turned out to be far lower than what EPA projected.

Public health impacts

Since EPA issued the MATS rule in 2012, virtually all coal plants installed the necessary pollution control technologies. “Far under expected cost, with no negative effects on grid reliability, and achieving a 96 percent reduction in annual emissions of hazardous air pollutants—including an 86 percent, or 25-ton, drop in mercury—by 2017,” McNamara writes of the regulation’s accomplishments. EPA’s proposed reversal of its “appropriate and necessary” finding wouldn’t immediately undo MATS, but it would leave the regulation vulnerable to legal challenges from coal companies.

Because mercury is a potent neurotoxicant, more mercury pollution disproportionately harms pregnant people and their children, with damaging impacts concentrated in populations that are already marginalized. One important route of exposure is consumption of fish containing methylmercury. Certain indigenous peoples and immigrant groups, along with subsistence fishers, consume large amounts of fish; if mercury pollution increases, their mercury exposure will rise substantially. Reversing the legal underpinning of MATS leaves our entire population at risk for health damage from increased air pollution, but those impacts will be concentrated on groups already facing substantial disadvantages.

Critical comments

Several of the many comments EPA received are critical of the agency’s woefully inadequate approach to analysis and evidence. Here are some choice excerpts.

21 attorneys general: “EPA blinds itself to relevant facts, ignoring data regarding the actual costs and benefits of controlling power-plant hazardous air pollution and instead proposing to rely on a stale and incomplete record that EPA knows is obsolete and not reflective of facts on the ground.”

Health, environmental, and community groups: “[U]nlawful, arbitrary, and senseless; it is an exercise in selective myopia and outcome-driven inconsistency … the Proposal rests on a preposterously incomplete analysis of the health and environmental consequences of regulating, and essentially no analysis of the real-world consequences of abandoning already implemented regulations. EPA’s proposal, without reasoned explanation, contradicts EPA’s own findings affirming the serious and widespread public health hazards posed by mercury and other HAPs [hazardous air pollutants].”

Academics, scientists, and clinicians: “The current proposal is scientifically and technically inadequate in its approaches to considering benefits and costs, as the rule’s methodology is a far departure from established, peer-reviewed and validated analytical practices.”

Organizations working to promote and protect science for the public good: “If EPA feels that MATS is inadequately supported by the economic analysis, it should undertake a new economic analysis that more thoroughly and accurately evaluates both the benefits and the costs. Ignoring evidence of substantial public health benefits would allow for reversal of regulation that has saved thousands of lives, and it would also set a damaging precedent of selective consideration of relevant evidence.”

Center for Progressive Reform member scholars and staff: “The tenets of welfare economics that undergird practice of cost-benefit analysis in general, and the EPA’s use of the methodology in particular, require consideration of co-benefits. … the consideration of all regulatory benefits – including co-benefits – is essential to the effective (and good faith) use of cost-benefit analysis in regulatory decision-making, while the conscious disregard of co-benefits defeats its successful use.”

Union of Concerned Scientists: “Agencies have an obligation to use the best available information in rulemaking; this action suggests an agency solely focused on reversing its past finding as opposed to making the most robust determination that it can. This is especially the case given the fact that every piece of newly available information runs counter to the EPA’s proposed determination, with evidence pointing to benefits being far higher and costs being far lower.”

The next step for EPA is to review all of these comments and revise or rescind the proposal in response. I hope they’ll pay more attention to the evidence now than they did when they were drafting this ill-conceived and dangerous rule.

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