Environment & Energy Report

Environmental Groups Dispute Power Plant Mercury Rule Change (2)

June 19, 2020, 2:15 PMUpdated: June 19, 2020, 7:50 PM

Civil rights, environmental, and health groups are suing the EPA for yanking its legal basis for limiting power plant releases of toxic mercury without considering the impact on minorities and low-income people who live near these facilities.

A coalition of 23 national, regional, and state groups, including the NAACP, asked the U.S. Court of Appeals for the District of Columbia Circuit on Friday to review the new rule from the Environmental Protection Agency.

“The EPA has taken an action that puts the lives of vulnerable populations at risk and has swept the consequences under the rug,” Earthjustice staff attorney Neil Gormley told Bloomberg Law. “We are taking this action to protect the mercury and air toxics standards that are saving lives and preventing toxic pollution from entering our environment.”

Earthjustice is representing eight of the groups in this lawsuit, including the NAACP.

The lawsuit comes after EPA last month finalized its decision (RIN: 2060-AT99), announced in April, to remove the legal underpinning for the mercury rule: a determination that regulating the pollutants is “appropriate and necessary.”

‘Foreshadows Our Approach’

The actual mercury limits affect mostly coal-fired power plants, nearly all of which have met the standards after spending millions of dollars to install controls. The agency didn’t eliminate the standards, only their legal rationale.

But EPA Administrator Andrew Wheeler said in April the rule “foreshadows our approach for cost-benefit regulation, where we focus on the targeted pollutants. Co-benefits should never be the driver of a regulation.”

Gormley said “EPA has decided not to give weight to environmental justice,” and that its rationale is “inconsistent with the Clean Air Act that requires everyone has clean air and everyone’s health is protected.”

The EPA itself has acknowledged that the 2012 standards have resulted in eliminating 96% of toxic air emissions including mercury, arsenic, cadmium, and other metals and acid gases, according to Ann Weeks, legal director for the Clean Air Task Force. The task force is representing five state-level environmental groups: Citizens for Pennsylvania’s Future, Clean Wisconsin, the Conservation Law Foundation, the Natural Resources Council of Maine, and the Ohio Environmental Council.

The Trump administration claims the rule costs far more than the potential benefits from paring emissions of mercury, a metal that is converted in soil and water into a neurotoxin that can lower IQ, cause motor function deficits, damage the nervous system, and lead to more heart attacks.

Environmental Justice

EPA redid the cost-benefit analysis, but used the same cost estimates and health benefits that the Obama administration had used in 2012 to set the mercury and air toxics standards, or MATS. It acknowledged that the potential health benefits may indicate more risk to some individuals and “more impacts to some groups like tribes than others.”

But in its May 22 rule, the EPA said “that those factors to which the EPA previously gave significant weight—including qualitative benefits, and distributional concerns and impacts on minorities—will not be given the same weight in a comparison of benefits and costs for this action.”

Gormley said the agency made the change despite finding that people who live within five miles of a regulated power plant are more likely to be Black, Hispanic, or indigenous people. Indigenous groups in particular are more likely to consume fish, including mercury-containing fish, as part of their diets.

“While asserting that it is assessing both benefits and costs of its regulation, EPA gives no discernible weight at all to the disproportionate benefits of the MATS rule to the most vulnerable in our society: children, tribal communities, and low-income and minority communities most likely to be living near the regulated facilities,” Weeks said in a statement Friday.

Jacqueline Patterson, director of the NAACP’s Environmental and Climate Justice Program, said the association got involved in the lawsuit because 68% of Blacks live within 30 miles of a coal-fired power plant.

‘In Our Best Interests’

“We know that we are heavily impacted by the pollution that comes from at least one of these power plants, So it is in our best interests that the most stringent regulations be in place to reduce mercury, arsenic, lead and other toxic pollutants,” Patterson said Friday.

Black children are three to five times more likely to get hospitalized for asthma and about two to three times more likely to die from respiratory complications, she said.

The EPA said its supplemental mercury rule “properly evaluated” the compliance costs for coal- and oil-fired power plants, and the benefits from regulating hazardous air pollutants from those power plants.

“Those power plants remain subject to and must comply with the mercury emissions standards of the MATS rule, which remains fully in effect notwithstanding the revised cost-benefit analysis,” the agency said in a statement Friday.

However, Gormley said the EPA didn’t provide a “reasoned explanation” for gutting the legal basis for the mercury rule even though it is a well established principle that federal agencies should provide one.

“The Supreme Court reaffirmed and reiterated that principle” in a 5-4 ruling on Thursday that the Trump administration couldn’t immediately end the 2012 Deferred Action for Childhood Arrivals (DACA) program because the Department of Homeland Security failed to provide “a reasoned explanation” for its action, Gormley said.

Westmoreland Suit

In a separate but related action, Gormley said, the coalition will also be intervening in the lawsuit that Colorado-based Westmoreland Mining Holdings filed a month ago, challenging the legality of the 2012 mercury and air toxic standards themselves.

The coalition is defending the Obama-era power plant standards for mercury and other toxic air pollutants, as well as the underlying legal rationale that the EPA issued in 2011. These groups made it clear that they weren’t attempting to defend the agency’s 2020 rule that seeks to undermine the 2012 standards.

“We will not let the coal industry take advantage of the Trump administration’s reckless and unlawful action to put in jeopardy the health and well-being of Americans, including the most vulnerable in our society,” Weeks said.

Response: EPA has said it doesn’t comment on pending litigation.

Attorneys: Earthjustice is representing a coalition of environmental groups including Air Alliance Houston, American Academy of Pediatrics, American Lung Association, Chesapeake Bay Foundation, Chesapeake Climate Action Network, Clean Air Council, Downwinders at Risk, NAACP, Natural Resources Defense Council, Sierra Club, and the Montana Environmental Information Center.

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is American Academy of Pediatrics v. EPA, D.C. Cir., 6/19/20.

(Updated with comments from Jacqueline Patterson, director of the NAACP's Environmental and Climate Justice Program. )

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bloombergindustry.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Anna Yukhananov at ayukhananov@bloombergindustry.com

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