The Environmental Protection Agency moved Wednesday to make it harder for the agency to justify stricter air pollution limits in future rules, a step proponents hope will protect the private sector from aggressive regulation by the Biden administration.
Wednesday’s action, a final rule, makes changes to the agency’s methods for calculating costs and economic benefits in a way that will make more proposals seem like they would do more damage than good.
The rulemaking, which EPA Administrator Andrew Wheeler announced Wednesday during a virtual event with the conservative Heritage Foundation, requires the agency to conduct a cost-benefit analysis for every major air pollution regulation and, to the extent possible, to make the data available to the public.
However, it narrows the kinds of costs and benefits the EPA is able to consider when it sets pollution limits, restricting the agency to weighing only the economic benefits resulting directly from reducing emissions of the targeted pollutant.
Importantly, that restriction would preclude the EPA from considering so-called co-benefits when setting pollution limits. Those are secondary benefits accrued from reductions in pollutants not directly regulated.
The rulemaking would also require the EPA to distinguish between domestic and global benefits from pollution regulations, a step that affects greenhouse gas controls in particular because those emissions benefits are considered largely global.
“Our goal with this rule is to help the public better understand the ‘why’ of a rulemaking in addition to the ‘what,'” Wheeler said.
“Up to now, there have been no regulations to hold the U.S. EPA accountable to a standardized process,” the administrator added. “This has meant inconsistent rules and a disoriented private sector.”
Wheeler criticized environmentalists and the media for “mischaracterizing” the cost-benefit rulemaking, saying the action is to improve the transparency of the EPA’s regulations.
“When our regulatory decisions are out in the public and everybody can see how we make our decision, we will have better regulations that are better accepted from the entire American public,” he added.
Industry and conservative groups have long complained that the EPA has relied too heavily on co-benefits to help justify air pollution controls. In a separate action in April, the EPA tossed out the legal justification for Obama-era mercury limits for power plants because the co-benefits of reducing fine particulate matter pollution were the largest chunk of economic benefits supporting the controls.
“In the past, cost-benefit analysis was improperly used to target the coal industry through unjustifiable regulations that imposed tremendous compliance costs that significantly outweighed the environmental benefits,” said Rich Nolan, the president and CEO of the National Mining Association. He added the EPA’s action will “provide a far more transparent regulatory process and fair accounting practices for the future.”
Environmentalists, however, say the Trump administration’s rule will hamper the EPA’s ability to set tougher air pollution limits by restricting its ability to comprehensively assess the benefits of reducing their emissions.
“This rule is an attack on public health, cloaked in misleading rhetoric,” said Richard Revesz, the director of the New York University School of Law’s Institute for Policy Integrity. “This unnecessary, unjustified rule seeks to conceal or ignore many public health benefits in the hopes of limiting future pollution reductions.”
The EPA’s action could tie the hands of the Biden EPA, at least temporarily, while it seeks to undo the action. The Biden administration would have to undergo a lengthy rulemaking process to do so, likely taking several months, if not years, especially if the Senate remains in Republican hands, eliminating any chance of using Congress to help cancel Trump-era rulemakings quickly.
Wheeler, however, said the cost-benefit rulemaking wouldn’t be subject to the Congressional Review Act because it governs the agency’s internal procedures and doesn’t qualify as a significant regulation eligible for cancellation under that law.
In addition, Wheeler said a future administration would face pushback if it tried to undo the cost-benefit rulemaking, though he didn’t mention President-elect Joe Biden by name.
It would be “rather ironic for anyone to step in and say, ‘We’re going to do a regulatory process to take transparency away from the American public,’” Wheeler said. “I can’t see anybody being able to do that with a straight face.”
Wheeler also suggested ignoring the cost-benefit rulemaking could create a headache for the Biden administration by leaving it vulnerable to lawsuits, likely from conservative groups and industry.
The cost-benefit overhaul is one of several actions that the Trump EPA is taking in its final months that could constrain the Biden administration’s regulatory power. On Monday, the EPA finalized a decision to keep federal limits for industrial soot pollution at their current levels despite recommendations from the EPA’s own scientists to tighten them.
The EPA is also racing to finish a rulemaking that would restrict the types of science the agency can consider when setting pollution limits, which Wheeler said he hopes will be unveiled “in a couple of weeks.”
