EPA to repeal Trump-era power plant rule

After a lengthy White House review, the EPA will today unveil a proposed rule restoring the legal basis for historical limits on emissions of mercury and other hazardous pollutants from power plants.

If made final, the proposal could permanently end a battle that has raged on and off for more than three decades since Congress opened the door to regulating such pollution from power plants in the 1990 amendments to the Clean Air Act. It could also seek to support the original cost-benefit analysis used by the EPA to justify the regulations.

The White House Office of Information and Regulatory Affairs returned the proposal to the EPA on Friday, nearly six months after receiving it, according to a government tracking website (Greenwire, September 24, 2021).

The public release is expected later this afternoon, according to environmental groups that have been following the issue. Although the contents of the proposal were not disclosed, the draft is expected to restore the statutorily required conclusion that it is “appropriate and necessary” to regulate hazardous emissions from coal and oil-fired power plants. The Trump administration’s decision in 2020 to drop that conclusion was among its most contested environmental measures, even drawing opposition from regulated utilities fearing it would undermine their ability to charge for expenses related to new pollution controls. to taxpayers.

“Everyone wants certainty moving forward,” said Debra Jezouit, an attorney at Baker Botts LLP who represents an energy industry coalition that supports restoring the conclusion, in an interview this morning. .

While the Trump administration’s decision left the actual emissions limits in place — officially known as the Mercury and Airborne Toxics Standards — public health and environmental groups feared that it is not a prelude to the erasure of the real regulations once their legal basis has disappeared. A Colorado-based coal company made this argument in an ongoing lawsuit in the United States Court of Appeals for the District of Columbia Circuit, although the proceedings are currently suspended (Greenwire, August 24, 2020).

Reviving the appropriate and necessary determination conclusion was apparently a top priority of the Biden administration; in a first executive order, the White House asked the EPA to publish its proposal by last August (Greenwire, January 21, 2021).

While the EPA sent the draft to OIRA for its usual review at this point, the White House then unexpectedly held it until last Friday. Representatives from the Office of Management and Budget, which includes OIRA, did not respond to emails asking what was behind the long wait.

Among environmental and public health advocates, however, theories ranged from a heavy workload in the regulatory affairs office to the possibility that the Biden administration was unwilling to make the proposal public as it tried still unsuccessful in winning the support of the Senate. Natural Resources Chairman Joe Manchin (DW.Va.) for his “Build Back Better” climate and social spending legislation.

Manchin opposed the mercury and air toxics standards when they were released in 2012 on the grounds that they would harm his state’s coal industry; he was then one of the few Senate Democrats to support a narrowly defeated attempt to repeal them.

Whatever the basis for the extended review, “we were very concerned that it was taking so long because fully addressing toxic air pollution from power plants is so important from a public health perspective. “, Paul Billings, senior vice president of public policy at the American Lung Association, said today in a separate interview.

In the proposed rule, EPA officials may also request information on the possibility of further tightening power plant standards, but have previously said they will only pursue this option through separate regulation.

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