E.P.A. Offers a Way to Avoid Clean-Air Rules: Send an Email
The Biden administration required coal- and oil-burning power plants to greatly reduce emissions of toxic chemicals including mercury, which can harm babies’ brains and cause heart disease in adults.
Now, the Trump administration is offering companies an extraordinary out: Send an email, and they might be given permission by President Trump to bypass the new restrictions, as well as other major clean-air rules.
The Environmental Protection Agency this week said it was invoking an obscure section of the Clean Air Act that enables the president to temporarily exempt industrial facilities from new rules if the technology required to meet those rules isn’t available, or if it’s in the interest of national security.
In its notice to companies, the agency provided a template for companies to use to get approvals, including what to write in the email’s subject line. Then “the president will make a decision on the merits,” said the notice, issued by the E.P.A. on Monday.
Joseph Goffman, former executive director of Harvard Law School’s Environmental and Energy Law Program who served as E.P.A. assistant administrator for air pollution under President Joseph R. Biden Jr., said he feared the President Trump was “setting up a rubber stamp process” that would allow companies to avoid a long list of rules on air pollution.
Normally, the agency would lay down more specific criteria for exemptions to a rule, he said. He also said that Congress had clearly intended for Clean Air Act exemptions to come with conditions that would ensure at least some pollution limits.
“Because none of that is present, it strongly suggests that the decisions will be at best ad hoc,” Mr. Goffman said. “That’s in defiance of Congress’s intent, in defiance of the public health needs of the communities that are affected, and in defiance of the E.P.A.’s past practices.”
Molly Vaseliou, a spokeswoman for the E.P.A., pushed back against that view, saying nowhere in the law was there an explicit requirement for such conditions. “This type of ‘legal analysis’ seems consistent with people who were responsible” for interpretations of laws the Supreme Court has struck down, she said in an email.
The latest policy allows for companies to apply for exemptions of up to two years, the maximum allowed under the Clean Air Act, from numerous new restrictions on emissions of toxic chemicals like mercury and arsenic, as well as ethylene oxide, a colorless gas that is widely used to sterilize medical devices and is also a carcinogen.
Mr. Zeldin, a former member of Congress from New York, has also said he would allow coal-burning power plants to apply for exemptions from a new rule that requires them to address the health risks of coal ash, a toxic substance created by burning coal to produce electricity.
The agency has said it intends to ultimately rewrite many of these same rules, an arduous process that is expected to take time. So the E.P.A. appears to be pursuing “a two-step process where it says it’s going to take the next few years to roll back the rules,” but in the meantime avoid companies having to meet any of them, said James Pew, director of clean air practice at the environmental group Earthjustice.
“It’s hard to imagine how these exemptions could be lawful,” Mr. Pew said. For all of the new rules, for example, the Biden administration had already identified alternative technology that was available and affordable. The idea that the ability to pollute was in the national interest was also hard to buy, he said.
As of Thursday, it was unclear whether the agency had started to receive exemption applications, whether any had been granted, and if or how they would be disclosed. Companies must apply for exemptions by the end of the month, the E.P.A. said.
The National Association of Manufacturers, the American Petroleum Institute, and the American Chemistry Council, which represent major regulated industries, did not immediately respond to comment.
