Weaken Mercury Regulations? It’s Scarier Than It Sounds

(Bloomberg Opinion) -- The Environmental Protection Agency is reportedly planning to propose a significant weakening of its mercury regulation, which is designed to protect public health. The agency’s plan includes an idea that would be simultaneously stupid and cruel — and that could lead to thousands of premature deaths.

First, full disclosure: Much of the work on the mercury regulation was done while I served as administrator of the White House Office of Information and Regulatory Affairs, from 2009 to 2012.

Critics of regulation in general are right to point out that rules can have what they call “risk-risk trade-offs.” Sometimes regulations are designed to reduce risks — but in the process, they increase risks as well. It is essential to consider such countervailing risks.

For example, fuel economy regulations, designed to make the air cleaner, might also make cars less safe — and so cost lives.

Aggressive regulation of nuclear power might increase reliance on coal-fired power plants, and thus increase air pollution — jeopardizing public health.

If the Food and Drug Administration refuses to allow the sale of a promising medicine on the grounds that it could have harmful side-effects, it might increase health risks on balance, because it denies people access to that medicine.

These examples show that regulators should have a wide rather than narrow viewscreen. If the law allows it, they should take account of the harmful effects of their regulations, not just the beneficial effects.

To its credit, the Trump administration has insisted on doing exactly that in the context of fuel economy regulations.

Which brings us to the mercury regulation. 

Mercury itself can cause serious neurological harm in both adults and children. But some of the scientific questions are disputed, and some experts think that in terms of mercury reductions alone, the EPA’s regulation would produce relatively modest health benefits. When it issued that regulation, the EPA candidly acknowledged that the benefits of reducing mercury would not come close to justifying the annual cost of $9.6 billion.

In the EPA’s view, the balance was more than tipped by “co-benefits.” To comply with the mercury regulation, power plants would have to take steps that would simultaneously reduce other pollutants, including particulate matter.

Those reductions would prevent up to 11,000 deaths annually, and also 4,700 nonfatal heart attacks and 130,000 asthma attacks. Translated into monetary terms, the co-benefits would be valued at $37 billion or more a year — easily enough to justify the $9.6 billion annual expenditure.

The Trump administration reportedly plans to exclude those co-benefits from its analysis of the mercury regulation. Without accounting for them, the mercury regulation would impose large costs and create small benefits, which would almost certainly justify a decision to weaken or repeal it.

In general, refusing to consider the co-benefits of regulations would be a huge mistake — just as bad as a refusal to consider countervailing risks.

Company officials sometimes complain that if an agency considers co-benefits, it is engaging in a form of double counting. That is false. It is simply counting.

True, other regulations also regulate air pollution, including particulate matter. If those regulations are independently producing the benefits said to be produced by the mercury regulation, then those benefits cannot fairly be attributed to the mercury regulation.

If the EPA ends up saying that it will count co-benefits only when they would not be produced by other regulations, it would be on solid ground. But apparently it wants to say something far more extreme: It won’t count co-benefits — period.

If that is what the EPA wants to say, its best argument might point to the Clean Air Act, which allows it to regulate mercury emissions only if regulation is “appropriate and necessary.” Perhaps the agency will say that in deciding whether regulation counts as appropriate and necessary, it is not permitted to consider co-benefits.

For somewhat abstruse and technical reasons, that’s not a crazy argument. But it’s probably wrong. In deciding whether regulation is appropriate and necessary, the agency should consider all of the benefits and costs, rather than just a subset.

The most important point is larger. The EPA appears to be contemplating a fundamental shift, in which it would give careful consideration to countervailing risks, while disregarding co-benefits. That would be arbitrary. There is every reason to expect that the federal courts would say so as well.

To contact the editor responsible for this story: Philip Gray at philipgray@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of "The Cost-Benefit Revolution" and co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

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