The Trump administration has completed a detailed legal proposal to dramatically weaken a major environmental regulation covering mercury, a toxic chemical emitted from coal-burning power plants, according to a person who has seen the document but is not authorized to speak publicly about it.
The proposal would not eliminate the mercury regulation entirely, but it is designed to put in place the legal justification for the Trump administration to weaken it and several other pollution rules, while setting the stage for a possible full repeal of the rule.
Andrew Wheeler, a former coal lobbyist who is now the acting administrator of the Environmental Protection Agency, is expected in the coming days to send the proposal to the White House for approval.
The move is the latest, and one of the most significant, in the Trump administration’s steady march of rollbacks of Obama-era health and environmental regulations on polluting industries, particularly coal. The weakening of the mercury rule — which the E.P.A. considers the most expensive clean air regulation ever put forth in terms of annual cost to industry — would represent a major victory for the coal industry. Mercury is known to damage the nervous systems of children and fetuses.
The details of the rollback about to be proposed would also represent a victory for Mr. Wheeler’s former boss, Robert E. Murray, the chief executive of the Murray Energy Corporation, one of the nation’s largest coal companies. Mr. Murray, who was a major donor to President Trump’s inauguration fund, personally requested the rollback of the mercury rule soon after Mr. Trump took office, in a written “wish list” he handed to Energy Secretary Rick Perry.
The proposal would also hand a victory to the former clients of William Wehrum, the E.P.A.’s top clean air official and the chief author of the plan. Mr. Wehrum worked for years as a lawyer for companies that run coal-fired power plants, and that have long sought such a change.
A spokesman for the E.P.A. did not respond to a request for comment.
The proposal also highlights a key environmental opinion of Judge Brett Kavanaugh, the embattled Supreme Court nominee, whose nomination hearings have gripped the nation in recent days.
The coal industry initially sued to roll back the mercury regulation, and in 2014 its case lost in the United States Court of Appeals for the District of Columbia Circuit. However, Judge Kavanaugh wrote the dissenting opinion in that case, highlighting questions about the rule’s cost to industry.
Should the legal battle over the proposed regulatory rollback go before the Supreme Court, some observers expect that Judge Kavanaugh, if elevated to a seat on the high court, would side with the coal industry.
Specifically, the new Trump administration proposal would repeal a 2011 finding made by the E.P.A. that when the federal government regulates toxic pollution such as mercury from coal-fired power plants, it must also, when considering the cost to industry of that rule, take into account the additional health benefits of reducing other pollutants as a side effect of implementing the regulation. Under the mercury program, the economic benefits of those health effects, known as “co-benefits,” helped to provide a legal and economic justification for the cost to industry of the regulation.
For example, as the nation’s power plants have complied with rule by installing technology to reduce emissions of mercury, they also created the side benefit of reducing pollution of soot and nitrogen oxide, pollutants linked to asthma and lung disease.
The Obama administration estimated that it would cost the electric utility industry an estimated $9.6 billion a year to install that mercury control technology, making it the most expensive clean air regulation ever put forth by the federal government. It found that reducing mercury brings up to $6 billion annually in health benefits — a high number, but not as high as the cost to industry. However, it further justified the regulation by citing an additional $80 billion in health benefits from the additional reduction in soot and nitrogen oxide that occur as a side effect of controlling mercury.
The new proposal directs the E.P.A. to no longer take into account those “co-benefits” when considering the economic impact of a regulation.
Should the proposal become final, it would mean that the mercury rule would, on paper, incur far greater economic cost than it would provide quantifiable health benefits. The Trump administration would then be legally justified in weakening the rule.
And that change could also give companies like Murray Energy a legal justification to sue for its deletion entirely, while giving the E.P.A. the legal basis to craft weaker pollution regulations that no longer take into account the co-benefits of eliminating additional pollutants.
“This is a sweeping attack on considering the benefits of cutting hazardous pollution from coal plants,” said John Walke, a legal expert on the Clean Air Act with the Natural Resources Defense Council, an advocacy group that expects to take a lead role in the legal effort to uphold the mercury standard. “This is the first legal step toward eliminating the standard entirely.”
A spokesman for Murray Energy cheered the expected move.
“E.P.A.’s proposal to revisit the outsized role that so-called ‘co-benefits’ play in the cost-benefit analyses used to justify costly regulations targeting pollutants such as mercury is appropriate and long overdue,” wrote the spokesman, Cody Nett, in an email. He said the process is “nothing less than double-counting,” since the E.P.A. already controls pollutants such as soot and nitrogen oxide in other regulations. He also called on the E.P.A. to review what he called “the questionable scientific foundation” for calculating the co-benefits.
Supporters and opponents of the proposal believe that the Supreme Court is likely to uphold it, particularly if Judge Kavanaugh is confirmed. In his 2014 dissent to the mercury ruling, he wrote, “The benefits of this rule are disputed.” He added: “Industry petitioners focus on the reduction in hazardous air pollutant emissions attributable to the regulations, which amount to only $4 to $6 million dollars each year. If those figures are right, the rule costs nearly $1,500 for every $1 of health and environmental benefit produced.”
The following year, in a decision that echoed Judge Kavanaugh’s dissent, the Supreme Court blocked the Obama-era mercury rule, ordering the E.P.A. to conduct a new cost analysis. The Obama administration did so, and ultimately reinstated the rule in 2016.
Murray Energy then sued to block it, but last year, the E.P.A.’s administrator at the time successfully petitioned the United States Circuit Court of Appeals of the District of Columbia to delay the oral arguments for that case, as the Trump administration sought to rewrite the rule entirely.
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