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Pruitt’s EPA Lawsuits Are Worse Than You Think

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Pruitt's new lawsuit claims that the EPA cannot consider these "co-benefits." Instead, he contended that the EPA should only be allowed to count the benefits from mercury reduction. His argument makes no sense—the whole point of cost–benefit analysis is to determine whether an overall societal benefit of a regulation exceeds its overall cost. And nothing in the Clean Air Act or in past practice requires the EPA to use blinders when judging the benefit. In fact, for years, under both political parties, the EPA has factored in "co-benefits" and federal guidance on cost-benefit analysis calls for it to be included.

The court has not yet ruled on this specious claim, but it did reject a request to put the rule on hold while it sorted the question out, suggesting the court's early skepticism of the argument's merit. Regardless of the ultimate ruling, the bottom line in the case is this: Pruitt indefensibly favored economic analysis of regulations that considers all of their costs, but only some of their benefits.

Pruitt's Interstate Pollution Lawsuits Reveal Further Hypocrisy

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It is revealing to note that, at the same time as Pruitt was suing the EPA to count all the costs (but not all the benefits) of its mercury ruling, he also argued against factoring in costs in a separate lawsuit that sought to block an EPA rule that prevents upwind states from sending their pollutants to downwind states in such quantities as to cause the downwind states to exceed heath-based pollution concentration limits.

By way of background, the EPA has tried for years to address the problem of interstate air pollution, but it is fiendishly complex. Many upwind states emit pollutants to multiple downwind states, many downwind states receive pollutants from multiple upwind states and some states are both upwind and downwind states. Thus, it is difficult to devise a formula to fairly and effectively apportion responsibility.

In 2011, the EPA crafted a "Transport Rule" to address the problem. They conducted extensive analysis of the costs involved to determine how expensive it would be, per ton of pollutant reduction, to ensure that upwind states do not cause downwind states' air quality to exceed federal standards. They then gave each upwind state a pollution "budget" for the state to use to reduce the pollutants that were wafting beyond their borders, based on this "cost per ton" reduction benchmark.

Scott Pruitt and others challenged this rule, arguing—believe it or not—that costs of compliance should not be the yardstick, arguing instead for an approach that would have been nearly impossible to administer. Not surprisingly, in a 6-2 vote, the Supreme Court rejected his attack.

The bottom line in this case is this: the EPA focused on a problem that states can't solve on their own (interstate air pollution). They solved the problem using a cost-effectiveness benchmark that is fair to all states, and that conservatives profess to favor. Pruitt's attack on this approach demonstrates an abandonment of conservative principles in the service of what appears to be his ultimate objective—stopping regulation.

Opposing Science to Block Regulation

Pruitt's lawsuits clearly demonstrate that he is against regulation, particularly of the oil and gas industry. That much we already knew. But when one looks at the actual cases he has filed and the legal arguments he has advanced, one sees something even more disturbing—a disrespect for science, a penchant for a rigged method of performing cost-benefit analysis, and a lack of interest in helping to police the problem of interstate air pollution—which clearly must be done at the federal level.

This all adds up to someone who uses the law to block good science. This is not acceptable, particularly for the head of the EPA. And that is why I and twelve other former state environmental protection agency heads, have signed a letter opposing this nomination.

Ken Kimmell is president of the Union of Concerned Scientists and has more than 30 years of experience in government, environmental policy and advocacy.

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