Escalating Deregulation: Acting EPA Administrator Issues Letter Proposing Ease on Mercury Rule

February 15, 2019

On December 28, 2018, the Acting Environmental Protection Agency (EPA) Administrator Andrew R. Wheeler signed a notice, in response to the United States Supreme Court decision in Michigan v. EPA, announcing the EPA’s intent to rescind the National Emission Standard for Hazardous Air Pollutants (NESHAPs) for coal- and oil-fired electric utility steam generating units (EGUs), commonly referred to as the Mercury and Air Toxic Standards (MATS). In formulating this proposed rule, the EPA has concluded that it is not “appropriate and necessary,” under the language of Michigan v. EPA, to adopt and maintain MATS. Though the proposed rule goes farther in the anticipated repeal of certain NESHAPs, pertaining to other hazardous pollutants emitted by coal- and oil-fired EGUs, this recent development will focus on the standard for mercury, and the allowable emission levels permitted.

While the recent government shutdown (and the ensuing delays in publishing of the Federal Register) has pushed the notice and comment period further, there is little doubt that the proposed rule will be adopted by the EPA. Interestingly enough, the EPA states that although they are seeking what effectively amounts to a repeal of the MATS rule, they are not interested in delisting EGUs or mercury from the enforcements covered by the CAA Amendments of 1990. This has come as a shock to several environmental groups, but was expected by those working in the industry. But while the results of the proposed rule may not be as Machiavellian as some fear right out of the gate, long term implications will certainly threaten the interests of environmental protection.

While the results of the proposed rule may not be as Machiavellian as some fear right out of the gate, long term implications will certainly threaten the interests of environmental protection.

The Trump Administration has stated that they have no current interest in removing mercury restrictions, but the threats are much more nuanced. One of the reasons for leaving the mercury restrictions in place may come from the lack of interest by the energy industry in scrapping a regulatory scheme they have already spent billions of dollars to comply with. But that isn’t to say the industry approves. The fight lies in the future; environmental groups’ main concern with the MATS repeal is that it opens the door to two worrisome situations: (1) that the energy industry will have greater luck when challenging specific provisions of the MATS rule in court, and (2) that future potential environmental regulations will be more difficult to pass. These are not unreasonable or even unexpected. The Trump Administration has been very public in its disdain for many federal environmental protections. The MATS repeal is not the only EPA regulation in President Trump’s crosshairs: the administration has already attacked provisions of the Clean Water Act, Endangered Species Act, and the National Environmental Protection Act, among others.

Though these assumed decreases in benefits have the environmental lobby worried, not every faction is disgruntled with the EPA’s shift. The coal industry, long supporters of President Trump and his campaign promises to end “the war on coal” have lauded the move as another one of President Trump’s efforts to ease the burden of an oppressive regulatory scheme that faults businesses disproportionately. This new proposed rule, supporters say, will rectify the MATS rule, which some believe “stands as perhaps the largest regulatory accounting fraud perpetrated on American consumers.” The near future holds, with almost certainty, the downfall of the Obama-era MATS rule, which could greatly ease the restrictions currently in place for the energy sector’s polluting of HAPs. This action falls in line with President Trump’s goal of dismantling environmental regulations, for his goal of aiding business interests. Were the proposed rule to be enacted, it would continue the Trump Administration’s track record of weakening the underpins of environmental protection, and negatively affecting public health.

Cooper Norris, 4 February 2019