In 2012, the Obama administration instituted a new rule on mercury pollution. But it did so employing a strange rationale.
The cost-benefit analysis showed that this regulation, at a cost of $9.6 billion, would return health, safety, and environmental benefits of only $6 million associated with the reduction of mercury emissions.
So, how could a regulation so enormously expensive and with such a tiny benefit be justified? The Obama Environmental Protection Agency reckoned that, by restricting mercury, the regulation would coincidentally cause a massive reduction in particulate matter pollution. This would be valued at an astounding $90 billion annually — comprising more than 99% of this mercury regulation’s benefit.
And so this was, effectively, a particulate matter regulation disguised as a mercury regulation. Given that particulate matter is regulated separately from mercury, this was clearly a case of cooking the books to make a regulation pass the cost-benefit test when it could not do so on its own merits.
This regulation enjoyed bipartisan support and (as is often the case) some industry support as well. But regulations do not exist in order to appease or aid industry (or specific anti-competitive factions within industry) or to make regulators feel good about themselves. They are for the public, and they must conform to the laws passed by the Congress that the public elects.
The law requires accurate cost-benefit analyses. In short, regulation should be based on law and science, not on creative bookkeeping. This is why the Trump EPA has repealed this rule. As American Action Forum’s Dan Bosch wrote, “The EPA’s supplemental finding rule regarding mercury emissions from EGUs is a rebuke to the practice of considering co-benefits to justify recent [Clean Air Act] rules.”
If the rule in question was so widely agreed to have been good in practice, then it can be brought back later in a different form that follows the law. This sort of chicanery in which the Obama administration indulged simply cannot be permitted in principle. If cost-benefit analyses can be circumvented this easily with dodgy co-benefit calculations, that will permit all kinds of undesirable regulations in the future.
The good news is that both mercury and particulate matter pollution were plummeting in the United States even before this regulation was adopted, and they will almost certainly continue to do so. Fracking and the low price of natural gas had already helped dramatically reduce the main source of mercury pollution — the burning of coal. Even by 2011, mercury emissions had halved since 2005. They have fallen further since, and they will not increase as a result of this change. As EPA Administrator Andrew Wheeler accurately noted, “Under this action, no more mercury will be emitted into the air than before.”
Likewise, particulate pollution was already falling by the time of the 2012 regulation — the rate of its decrease appears to have slightly slowed since its enactment. But absent any new incentives to bring back coal-fired power generation, particulate pollution will likely continue to fall.
Already, the hand-wringing and far-fetched claims about thousands of deaths are being taken up uncritically by the media. But today, the U.S. likely has cleaner air and water than at any point in the last 150 years.
Amid the coronavirus threat, the public is becoming accustomed to the idea that there are trade-offs to all health and safety regulations. Unless one is prepared for a 5 mph speed limit, one must dismiss rhetoric about doing whatever it takes to save every single life. Public health policy must always balance costs and benefits. And part of the cost is freedom, which is threatened when dishonest bookkeeping is employed to justify new regulations.
