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Environment & Energy Report

Biden Team in a Bind Over Reversing EPA’s ‘Secret Science’ Rule

Jan. 6, 2021, 7:57 PM

The Biden administration faces few easy answers in trying to undo a science transparency rule from the EPA that fundamentally changes how the agency approaches scientific studies.

The Strengthening Transparency in Regulatory Science (RIN:2080-AA14) rule, published Wednesday, limits the scientific studies the Environmental Protection Agency can use to guide regulations, restricting the use of research that can’t be reproduced or is based on underlying data that isn’t public.

Green groups worry the rule would stem the use of seminal research like the Harvard “Six Cities” study, which set the bar for determining the long-term harm of fine particle emissions and relied on personal health data from thousands of participants.

“As a nation we’ve learned through the pandemic that it’s important to have science at the table,” said Chris Zarba, former director of the EPA’s Science Advisory Board staff office. “And this rule focuses on getting science out of the way.”

Some legal observers cite the Congressional Review Act—which gives lawmakers some time after a rule takes effect to vote to strike it down—as a possible tool. But regulatory, legal, and legislative solutions each come with their own pitfalls, observers say—not least because of the opposition they’re likely to get from the rule’s defenders.

“Whatever the Biden administration does will be scrutinized,” said Richard Revesz, an administrative law professor at New York University. “There will be claims that whatever the administration did was not appropriate.”

Writing Anew

In response to a question about the rule’s path forward, Cameron French, a spokesperson for the Biden-Harris transition team, pointed to recent comments from Jen Psaki, incoming White House press secretary. Psaki said the Biden administration would immediately freeze rules that have been finalized but haven’t taken effect by Inauguration Day on Jan. 20.

However, the new EPA rule is set to take effect as soon as it’s published in the Federal Register on Wednesday.

The slowest approach—but one of the most secure—would be for the Biden EPA would be to issue its own regulation that overwrites the Trump rule. That path would formally wipe out the rule—not just for the next four years but also for future administrations. That could change, of course, if a future EPA administrator decided to keep the tug of war going by issuing another similar rule.

But it would take years for the EPA to produce its own rule. The agency would have to churn through the process of issuing a regulatory proposal, soliciting comments from the public, responding to them, and then fending off legal challenges.

‘Why Sweat It?’

To Steve Milloy, one of the architects of the rule and a former member of President Donald Trump’s EPA transition team, launching a new regulation isn’t necessary because the rule is “just internal agency guidance. It’s not really a regulation. This rule does not compel EPA to do anything.”

Both Milloy and EPA Administrator Andrew Wheeler, who announced the rule on Tuesday, stressed it doesn’t preclude the agency from using pivotal studies if the underlying information isn’t publicly available, as long as an explanation is provided.

“If [the Biden administration] feels it’s necessary to dot the I’s and cross the T’s, they can do that, but I don’t see the need for it,” Milloy said. “The EPA administrator retains total discretion over everything. So why sweat it?”

Wheeler insisted on Tuesday that landmark Harvard study could still be used in agency actions, though non-public scientific data must be given “lesser consideration” under the new rule.

Legal Challenge

Some legal experts see the issue the same way.

Since the rule was authorized under the Federal Housekeeping Statute, a new EPA administrator could simply wave it away without going through the notice-and-comment strictures of the Administrative Procedure Act, said John Bachmann, who served in the EPA’s air program from 1974 to 2007.

For example, the EPA could grant itself a blanket exemption to the rule’s mandates for any scientific study that was published in a peer-reviewed journal, he said.

“What could you do about it? This thing gives such discretion to the administration,” he said. The Supreme Court in 1979 ruled that the housekeeping statute gives agencies the right to “govern internal departmental affairs.”

Another way the rule could be struck down is under a lawsuit, presumably from an environmental group. David Coursen, who served as an EPA attorney from 1987 to 2015, said the EPA’s use of the housekeeping statute creates an opening for legal challenges.

Ben Levitan, a senior attorney at the Environmental Defense Fund, called the rule “manifestly unlawful,” and said the group is planning legal action. The Union of Concerned Scientists also said it is looking at legal options.

“If this is a housekeeping rule, then it’s hard to imagine anything that involves collecting and evaluating public comments that wouldn’t be housekeeping,” Coursen said. “They’re basically saying that the APA doesn’t apply to rulemaking anymore.”

Congressional Action

Wheeler said the Congressional Review Act can’t be used because the rule is “an internal housekeeping regulation that does not affect external people to the agency,” and because it isn’t economically significant, meaning it isn’t expected to have an annual effect on the economy of at least $100 million.

But Revesz cast doubt on that analysis.

“Whether a rule qualifies for disapproval is up to Congress to determine,” Revesz said. “Wheeler’s views are entitled to no deference. The decision is not up to him.”

Susan Dudley, former head of the White House Office of Information and Regulatory Affairs under President George W. Bush, also broadly agreed that the CRA could indeed be triggered.

“The CRA defines rules very broadly,” said Dudley, now director of the George Washington University Regulatory Studies Center. “If Congress votes to disapprove it, who’s going to say they can’t?”

A successful Congressional Review Act resolution could bring an added bonus to the Biden team: once a rule has been vetoed under the statute, another provision in the law bars any future administration from moving regulations in “substantially the same form.”

That clause has never been tested in the courts, but many legal scholars think it could mean the use of science in EPA regulations could never again be limited by any future president.

Of course, congressional Democrats’ ability to successfully hold such a vote hinges in part on the outcome of the Tuesday Senate elections in Georgia. Even if Democrats take the majority, they will have to pick their battles when deciding which rules to take up, said Dudley.

“It takes time away in the Senate from confirming nominees,” she said, so Democrats will want to be “selective.” “But I think science transparency could be one.”

To contact the reporters on this story: Stephen Lee in Washington at stephenlee@bloombergindustry.com; Jennifer Hijazi in Arlington at jhijazi@bloombergindustry.com

To contact the editor responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com

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