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New Trump Rule Aims to Limit Tough Clean Air Measures Under Biden

WASHINGTON — The Trump administration on Wednesday completed a rule that could weaken federal authority to issue clean air and climate change rules by changing the way the costs of pollution to human health and safety are tallied — and the way benefits of controlling that pollution are tabulated.

The new rule is the latest in a flurry of final Trump administration policies from the Environmental Protection Agency, as agency political appointees seek to wrap up four years of rolling back or weakening more than 100 environmental rules and policies.

But the cost-benefit rule, which changes the way the E.P.A. is required to report economic analyses of Clean Air Act regulations, is not expected to survive the incoming Biden administration, which could quickly reverse it.

“A Biden administration could just come in and propose a different rule,” said Steven J. Milloy, who serves as an informal environmental policy adviser to members of the Trump administration and is author of the book “Scare Pollution: Why and How to Fix the E.P.A.” “Ultimately these final Trump rules won’t really matter, other than that they’ll have some political rhetorical value for people like me.”

If Mr. Trump had won the presidential election, the rule could have had a significant effect on the federal government’s legal authority to weaken existing air pollution rules while limiting its authority to put in place tight pollution controls in the future.

Trump administration officials lauded the rule as though it would have a lasting impact. Andrew Wheeler, the E.P.A. administrator, introduced it at a virtual event hosted by the Heritage Foundation, a conservative research organization, which billed Mr. Wheeler’s speech as a “major policy announcement.”

Mr. Wheeler said the rule was designed primarily to increase transparency. “Our goal with this rule is to help the public better understand the why of rule-making in addition to the what.”

But he also said that it had been explicitly designed to prevent future administrations from releasing rules like an Obama administration regulation on toxic mercury pollution, which the industry officials said was far too costly for the benefits and which the E.P.A. rolled back this spring.

The new rule would change how the E.P.A. is required to reports its calculations of the economic costs and benefits of new clean air and climate change rules. Agency economists will be required to calculate the value of benefits to public health that directly stem from a new environmental regulation, and separately the value of ancillary benefits, or “co-benefits” — such as the reduction of additional pollutants not directly governed by the regulation. Direct benefits and “co-benefits” would then have to be presented as separate categories.

That requirement, experts said, appears to be designed to give regulated industries a new avenue to sue a future E.P.A. over tight new air pollution rules, by centering litigation around the costs and benefits of the ancillary category.

“The requirements of the rule are not nefarious — but the question is, how do you use the information?” said Roy Gamse, a former director of economic analysis at the E.P.A.

“The rule provides a hook for opponents of regulations to throw sand in the gears via litigation,” he said. “It is totally unnecessary, it is not required by the Clean Air Act, and it has no obvious purpose but to block future clean air regulations.”

Industry groups applauded the rule.

“Strengthening the consistency and transparency of rule-makings is a significant step forward for Clean Air Act provisions and is critical for continuing improvements in U.S. air quality,” said Frank Macchiarola, a vice president of the American Petroleum Institute, which lobbies for oil companies. “This policy will help protect public health and the environment cost-effectively as we continue to reduce emissions and invest in innovative technologies while delivering affordable, reliable energy.”

Mr. Wheeler formally proposed the rule change in June, following years of complaints by fossil fuel companies, which say the economic formulas used by the federal government to justify pollution controls have unfairly harmed them. During the Obama administration, the E.P.A. drafted a rule to limit toxic mercury pollution from power plants, estimating that it would cost the electric utility industry $9.6 billion a year. But an initial analysis found that reducing mercury would save just $6 million annually in health costs.

To justify that imbalance, the Obama administration found an additional $80 billion in health “co-benefits” from the incidental reduction of soot and nitrogen oxide that would occur as side effects of controlling mercury.

In May, the Trump administration completed a rollback of that mercury rule, discounting such co-benefits.

“It has been abused,” Mr. Wheeler said about the use of co-benefits in cost-benefit analysis. “A poster child for how not to conduct cost-benefit analysis was how the previous administration used them to justify the mercury rule. What we’re trying to do is stop things like that from happening in the future.”

Nonetheless, it is expected that the Biden administration will begin the work of reissuing the mercury rule early in Mr. Biden’s first term.

Historically, the economic costs of regulating pollutants such as mercury or planet-warming greenhouse gases often do outweigh the direct benefits. But such rules also tend to lower emissions of another deadly pollutant: fine industrial soot, also known as particulate matter.

By reducing emissions of the tiny, lung damaging particles known as PM 2.5, clean air rules that are primarily aimed at controlling different pollutants can have the effect of saving thousands of lives by lowering rates of asthma and lung disease. And, in April, researchers at Harvard released the first nationwide study linking long-term exposure to PM 2.5 and Covid-19 death rates.

Mr. Gamse compared the importance of counting co-benefits in environmental rules to those of drugs. He noted that the drug Viagra was initially put on the market to combat high blood pressure but turned out to have the co-benefit of treating erectile dysfunction. “It’s like discounting that co-benefit,” he said.

Experts said that it would quite likely take about six months for the Biden administration to roll back the new cost-benefit rule, so it would no longer be in place by the time the Biden administration reinstated other Obama-era rules.

“It’s like breaking all the calculators on the way out the door,” said Jack Lienke, the director of regulatory policy at the New York University School of Law’s Institute for Policy Integrity. “The people coming in can buy new calculators. It’s just a hurdle and takes some time. It’s just another annoyance for the incoming administration to deal with. ”