It is still (still) necessary and appropriate to regulate air pollutants from power plants | Foley Hoag LLP – Environmental Law

The EPA has proposed to revoke the Trump administration’s 2020 finding that it is not appropriate and necessary to regulate air toxic emissions from coal and oil-fired power plants. Instead, the EPA proposes to reaffirm its 2012 and 2016 rulings supporting such regulation.

This is not surprising and should not be controversial. It may seem strange that I quote the Edison Electric Institute twice in one week in support of the EPA’s regulatory authority, but E&E News (subscription required) quotes IEE President Tom Kuhn as supporting the decision. So I’ll briefly touch on three notable aspects of the EPA’s proposal:

  • The EPA re-examined the numbers and found that both the costs of the MATS regulations were significantly overestimated the first time around and the benefits of the regulations were underestimated. So the rule seems even more “appropriate” now than it did in 2012, 2016 or 2020.
  • The EPA’s “preferred methodology” remains a “totality of the circumstances” approach, rather than a pure cost-benefit analysis that monetizes everything. I am always a fan of cost-benefit analysis. My view remains that if the EPA finds that the costs of regulation will be $X and it decides to go ahead and regulate, that implicitly means that the benefits of regulation exceed X $. Wouldn’t it be better for the EPA to be explicit and explain why it concluded that the benefits exceed $X?
  • The EPA is taking a belt and suspenders approach here. First, regulation is justified under the “totality of the circumstances” approach. Second, if it were a pure cost-benefit analysis, the rule would make sense there too. Third, the co-benefits are enormous, which further justifies the rule. Fourth, the EPA doesn’t even really need to look at co-benefits because the cost of regulation is much lower than originally thought and the benefits purely from emissions reductions of mercury and toxic substances in the air are far greater than previously thought.

I’m going to take a chance and say that not only is the EPA right, but they will win in court if the final rule is challenged.

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