EPA move to alter public health measures alarms advocates

By changing the way it estimates the public health benefits of new rules, the EPA may find it is less able to justify industry compliance costs

EPA Administrator Andrew Wheeler speaks during a Senate Environment and Public Works Committee hearing on May 20.  (Al Drago/Bloomberg/POOL)
EPA Administrator Andrew Wheeler speaks during a Senate Environment and Public Works Committee hearing on May 20. (Al Drago/Bloomberg/POOL)
Posted June 5, 2020 at 6:00am

Environmental advocates are warning that changes to the way the EPA calculates public health benefits of the rules it writes would make it harder to regulate air pollution, even as industry groups cheer the overhauls they have long sought.

The EPA on Thursday evening proposed overhauls to its metrics for weighing the public health and environmental benefits of the regulations it writes against the costs for industries to comply with new rules.

The proposal follows years of conservatives, industry groups and GOP lawmakers accusing the Obama administration of overstating potential environmental and public health benefits to justify what they say were overly stringent rules that were detrimental to industry.

The proposal would implement a 2017 executive order signed by President Donald Trump directing agencies to “lower regulatory burdens on the American people.”

EPA Administrator Andrew Wheeler said the proposal “corrects another dishonest accounting method the previous administration used to justify costly, ineffective regulations.”

The proposal, the agency said in a fact sheet, would ensure that information regarding the benefits and costs of regulatory decisions are developed and provided to the public in a consistent and transparent manner.

But environmental groups see another step by the administration to promote polluters’ interests while limiting the EPA’s mandate to protect public health and the environment.

Of concern is that the rule would allow the EPA to disregard indirect benefits of certain clean air rules and allow the administration to argue that the costs of some environmental regulations outweigh the benefits.

'Inconvenient reality'

“For polluters and other opponents of environmental regulation, the inconvenient reality is that when a complete analysis and comparison of costs and benefits is done, the public health benefits of regulation have often easily outweighed the compliance costs for industry,” Hayden Hashimoto, a legal fellow at the Clean Air Task Force said. “The bottom line is that the Trump EPA’s attempts to tie its own hands are a transparent effort to benefit industry at the expense of the American people."

Environmental Defense Fund lead attorney Tomás Carbonell said the EPA was “cooking the books to downplay the benefits” of clean air safeguards, distorting science, and adding new hurdles for issuing clean air protections.

The changes, he said, would be especially detrimental to low-income communities and people of color who are already suffering disproportionately from the harmful impacts of air pollution and would allow the agency to disregard benefits such as fewer premature deaths and fewer childhood asthma attacks in its rulemaking.

Some of the EPA’s former scientific advisers have accused the Trump administration of using faulty benefit-cost calculations to justify rolling back or reviewing Obama administration rules. Those advisers said the Trump administration had used faulty and outdated data to revoke the legal justification for issuing the Mercury and Air Toxics Standards rule that aimed to curb hazardous air emissions from coal- and oil-fired power plants, failing to account for tens of billions of health benefits to the public.

Mary Evans, a professor of environmental economics at Claremont McKenna College told CQ Roll Call that the rule proposes to disaggregate benefits into those “targeted and ancillary to the statutory objective of the regulation,” which could mean that direct and indirect benefits are not equally considered.

“All costs and benefits that are incremental to the rule should be counted on equal footing,” Evans said.

Republicans have sought the changes, arguing that overly stringent rules become too costly for industry without significant public health benefits.

'Inconsistent' application

“This proposed rule comes in response to EPA’s previously inconsistent, and sometimes controversial, application of cost-benefit practices across its programs,” House Energy and Commerce Republicans Greg Walden of Oregon, Fred Upton of Michigan and John Shimkus of Illinois, said in a joint news release. “The proposal will work to increase reliability, accuracy, and usefulness of future cost-benefit analyses of regulations– while ensuring we maintain environmental protections under the Clean Air Act.”

Industry groups such as the U.S. Chamber of Commerce and the American Petroleum Institute also lauded the EPA’s proposal as a commonsense move.

“Ensuring the EPA’s rulemaking process uses clear and consistent data showing how the agency developed proposed rules will benefit the public, industry and all stakeholders,” said Frank Macchiarola, a senior vice president of policy at the American Petroleum Institute. “The past decade is proof that we can achieve environmental progress and economic growth at the same time. Under improved Clean Air Act provisions, continued innovation and technologies developed by the oil and natural gas industry can build on these achievements.”

Jeff Holmstead, a partner at law firm Bracewell LLP and former head of the EPA air office in the George W. Bush administration, said the EPA “isn't really breaking new ground” with its proposal.

“Since the early 1980s, presidents of both parties have ordered federal agencies, including EPA, to base regulatory decisions on benefit-cost analysis,” he said. “Unfortunately, EPA has not always followed these presidential orders.”

He added that the EPA “is simply binding itself to meet standards for scientific integrity and transparency that have long been in existence” but not always followed.

The rule would apply to new significant rules but it’s not clear if it could trigger legal challenges of existing rules.

Senate Environment and Public Works top Democrat Thomas R. Carper of Delaware said the administration is “warping” the cost-benefit calculations to erode the scientific basis for clean air rules.

“This is not about improving transparency or ensuring consistency in the regulatory process,” Carper said. “This is about ensuring EPA can disregard the benefits of reducing air pollution and ignore the real, human costs of increasing it.”