BG&A partner Adam Gustafson testified today at a hearing before the House Energy & Commerce Committee’s Subcommittee on Oversight & Investigations. The hearing concerned EPA’s reconsideration of the Obama Administration’s supplemental finding that EPA’s Mercury and Air Toxics Standard for coal-fired power plants was “appropriate and necessary” under Section 112 of the Clean Air Act.

On remand from the Supreme Court in Michigan v. EPA, the Obama EPA found that the Mercury Rule’s heavy compliance costs were justified by incidental reductions of particulate matter (“PM”) from the control technologies that power plants would adopt to satisfy the Rule’s acid gas and mercury standards.

After the Trump Administration came to office and found itself in litigation over the supplemental finding, EPA proposed to exclude PM co-benefits from the analysis and therefore to determine that the Mercury Rule was not “appropriate and necessary.”

At today’s hearing, Gustafson argued that EPA’s new approach is required by Section 112’s prohibition on regulating criteria pollutants like PM, which are governed by a national ambient air quality standard (“NAAQS”) promulgated under a different provision of the Clean Air Act. He explained that the past Administration’s cost-benefit analysis had double-counted PM co-benefits that were already used to support the NAAQS and over-counted PM reductions in areas that had attained the NAAQS.

The other witnesses at the hearing were Janet McCabe, Heather McTeer Toney, Michael Livermore, Dr. Noelle Eckley Selin, and Dr. Philip Landrigan.

The hearing video and testimony are available here. 

Adam Gustafson’s written testimony is available here.