First, don’t do 2,400 times more harm than good. 

In the past, the Environmental Protection Agency didn’t agree with that sentiment.

That might be changing, though, as the EPA appears to be rejecting a scheme that has led to some of the costliest rules in U.S. history.  

In 2012, the EPA finalized a rule to reduce emissions of mercury and other hazardous air pollutants from coal- and oil-fired power plants (the Mercury and Air Toxics Standards or the “MATS” rule). 

The EPA decided that it didn’t need to consider costs ($9.6 billion per year) when deciding whether to move forward with the rule.  

It didn’t matter to the EPA that the benefits of reducing the mercury and other hazardous air pollutant emissions was only $4 million to $6 million annually. In other words, the costs were 1,600 to 2,400 times greater than the benefits.

Fortunately, the U.S. Supreme Court in Michigan v. EPA held that the agency did need to consider the costs of the rule, based on the relevant Clean Air Act section. 

In response, the Obama administration’s EPA considered costs, but then played a game, manipulating benefits, as the agency has done in the past.  

The agency didn’t care that the very reason for the rule (i.e., reducing mercury and other hazardous air pollutant emissions from coal- and oil-fired power plants) could not be justified. (The benefits still paled in comparison to the costs.) 

Instead, the agency justified the rule based on questionableancillary (secondary) benefits from reducing particulate matter, even though particulate matter had nothing to do with the purpose of the rule.

The word “ancillary” is defined as being less important than something else, secondary, or subordinate. When ancillary benefits exceed the direct benefits (the primary benefits) of a rule, they can hardly be considered less important than the direct benefits or subordinate to them.

This year, the Trump administration’s EPA proposed a rule that would reject this overreliance on ancillary benefits connected with the MATS rule. 

Hopefully, any final rule will help make it clear that such abuses won’t be tolerated for other rules as well under the Clean Air Act.

What’s wrong with overreliance on ancillary benefits for a rule?  

1. EPA doesn’t have to justify the purpose of the rule. This overreliance on ancillary benefits can allow the EPA to regulate a pollutant without ever making the case that reducing emissions of the targeted pollutant is even warranted. That’s what happened with the MATS rule.  

In fact, why should the EPA bother trying to figure out the benefits of regulating the targeted pollutant (direct benefits)? That’s a question the EPA has apparently asked itself. According to NERA Consulting data, the EPA did not quantify any direct benefits for six major Clean Air Act rules from 2009 to 2011.  The quantified benefits were exclusively from the ancillary benefits. 

2. The EPA can do end runs around legal and regulatory requirements. At some point, when ancillary benefits are so massive in relation to the direct benefits, the stated purpose of the rule cannot reasonably be claimed to be the true purpose of the rule. Instead, the rule is really about addressing the pollutant yielding the ancillary benefits. For example, the MATS rule, based on the alleged benefits, is really just a particulate matter rule.

The EPA should have analyzed the rule from that perspective. That includes conducting proper regulatory analysis, such as identifying alternative ways to address particulate matter. 

It also includes ensuring that particulate matter can legally be regulated under the specific Clean Air Act provision, especially since the statute already has another section that addresses the regulation of particulate matter.  

The use of ancillary benefits shouldn’t provide the EPA an end run to get around the law to regulate whatever it wants.

3. The EPA can mislead the public. One needs to look no further than the EPA’s website to see how overreliance on ancillary benefits can create confusion and mislead the public. On a MATS-related webpage, titled “Healthier Americans,” it lays out numerous alleged benefits of this “mercury rule,” such as fewer sick days and asthma attacks. There is nothing on the page that explains that these alleged benefits have absolutely nothing to do with reductions in mercury emissions.

The EPA has too often pushed regulation at any cost. That needs to change. Stopping the overreliance on ancillary benefits is a critical way of making that change happen. 

Please see the author’s regulatory comment to the EPA to learn more about this issue.