EPA Move to Mute Health Costs in Air Rules Eases Deregulation

The EPA’s decision this week to scrap consideration of the dollar value of health effects in air pollution rulemaking ends a longstanding strategy that stands to blind the public to the monetary benefits of lives saved while easing the path for further deregulation.

The change cuts the public out of key knowledge on the impacts of reducing pollution, an instrumental tool in President Donald Trump’s deregulatory campaign that’s part of a “long running battle” dating back to his first administration, according to Joe Goffman, who led the Environmental Protection Agency’s air office during the Biden administration.

The EPA, by previously considering the public health effects of its rulemaking, “really mobilized the results of cost-benefit analysis to really help the public understand the value of its actions,” said Goffman.

But the agency is now accounting for uncertainty in past health cost estimates by “no longer monetizing benefits from PM2.5 and ozone,” according to a rule finalized Wednesday governing nitrogen oxide and sulfur dioxide emissions for power plants.

Those emissions are regulated under National Ambient Air Quality Standards and are precursors for either PM 2.5, which is fine particle air pollution, or ozone.

Cost-benefit analyses help lawmakers fully analyze the pros and cons of public policy, but they’re also a tool for the public to hold the federal government accountable for its decisions.

“The fossil fuel industry, and the first term Trump EPA have for years been pursuing a number of arguments and strategies to exclude consideration of the huge impact of reducing fine particles and keeping that impact out of public view,” Goffman said in an email.

Favoring economic over health benefits of regulations is consistent with the Trump administration’s goals of rolling back environmental protections to spur energy production.

Trump granted numerous exemptions and regulatory relief for industry since the start of his administration, citing the need for US energy dominance and grid reliability. EPA Administrator Lee Zeldin has rolled back mercury and greenhouse gas rules for power plants, and regulations for PM 2.5—which were toughened substantially by the Biden administration—are next on the list.

Nothing Balanced Against Human Health

The agency isn’t completely ignoring health impacts when setting air rules. Legally, it can’t.

The EPA is still required to only consider public health when setting National Ambient Air Quality limits, or NAAQS. This is mandated under statute and confirmed by legal precedent in Whitman v. American Trucking Associations Inc., which says that clean air law “does not permit the Administrator to consider implementation costs in setting NAAQS.”

An EPA spokesperson confirmed with Bloomberg Law that the agency is following its Clean Air Act mandates to the letter.

“EPA, like the agency always has, is still considering the impacts that PM2.5 and ozone emissions have on human health,” according to the spokesperson. “Not monetizing does not equal not considering or not valuing the human health impact.”

Originally mandated by executive order, cost-benefit analysis is not required in order to set air quality rules, but it has been a part of the rulemaking process across administrations dating back to the Reagan era.

Clean air statute requires a comprehensive analysis to be done during the assessment phase of a rule, but human health cannot be balanced against anything else for the final product, according to University of Houston law professor Victor Flatt.

“The environmental laws—the Clean Air Act, RCRA, CERCLA—they’re some of the very, very few laws that specifically put human health superior to other things,” Flatt said, referring to the Resource Conservation and Recovery Act and Comprehensive Environmental Response, Compensation, and Liability Act, also known as Superfund.

Weighing costs and benefits also gives the agency, the public, and industry a fuller picture of new rules, according to Carrie Jenks, executive director of the Harvard Environmental & Energy Law Program.

“If you don’t have full information, as best as you can quantify or not quantify, I think there’s a risk that those regulations and the final standards don’t reflect the best information that’s available,” Jenks said.

How these new data points play out in litigation remains to be seen, but advocates say the administration may have a tough time justifying weaker rules with fewer data points, especially when there are other options to address the uncertainty the EPA cited as its reason for the change.

“It also seems arbitrary and capricious to respond to uncertainty by eliminating environmental benefits from the analysis,” University of California, Berkeley law professor Dan Farber said in a Jan. 12 blog post. Whether rulemaking is arbitrary and capricious is a key legal standard for determining whether a regulation stands up to challenges under the Administrative Procedure Act.

“Right now, sitting in front of the public, is a very strong case for the tighter standards,” Goffman said. “If and when Zeldin weakens those standards, which he’s clearly trying to do, he’s going to have to overcome that case.”