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Court Order Widens EPA Options to Drop ‘Secret Science’ Rule (2)

Jan. 28, 2021, 9:05 PMUpdated: Jan. 29, 2021, 12:42 AM

A federal court decision delaying the effective date of the EPA’s science transparency rule gives the Biden administration a pathway to unravel it, including the use of the same procedural tool the Trump administration team used to write it, legal scholars say.

The U.S. District Court for the District of Montana said on Wednesday that the Environmental Protection Agency hadn’t justified its decision to put the rule in effect right after its publication in the Federal Register—instead of after 30 days, as is standard practice. That created an opportunity for the Biden administration to try sweeping the rule into a Jan. 20 memo that pauses all Trump-era rules that hadn’t taken effect by that date, said Amit Narang, a regulatory policy expert with the watchdog group Public Citizen.

The memo tells agencies to consider postponing Trump-era rules for 60 days, and possibly open a 30-day comment period to rethink them.

The Strengthening Transparency in Regulatory Science (RIN:2080-AA14) rule limits the EPA’s ability to write regulations that are unpinned by scientific research that can’t be reproduced or is based on underlying data that isn’t public—seen by critics as a bid to block tough new environmental regulations

Sidney Shapiro, an administrative law professor at Wake Forest University, said it’s possible that freezing the rule would be challenged in court, since the executive order technically applies to rules that haven’t taken effect. The EPA rule had already taken effect, kicking in on Jan. 6.

Still, that doesn’t mean the Biden EPA shouldn’t try—then see if anyone tries to sue, Shapiro said.

“It seems to me the best strategy for them is throw everything against the wall and try to get rid of it one way or another,” he said.

Asking for More Time

Jonathan Martel, a partner at Arnold & Porter Kaye Scholer LLP, added that, because the Jan. 20 memo is only a memo, it’s not subject to the same rigorous standards of interpretation as a statute or regulation.

“A more natural reading of the regulatory freeze memo is that it would apply,” Martel said.

Whether the Biden administration chooses that path or not, it now has until Feb. 5 to claim a longer extension on the rule’s effective date under the “good cause” exemption under the Administrative Procedure Act, according to Cary Coglianese, a regulatory law professor at the University of Pennsylvania Law School.

If that exemption is challenged in court, it could well be seen as reasonable, given the need for a new administration to “simply ask for time to take a look at the rule,” Coglianese said. The shorter the extension the EPA wants, the likelier it is to be successful in court, he said.

The Trump administration itself used the “good cause” exemption as a rationale for putting the rule into effect right away, arguing its goal of ensuring transparency “is crucial for ensuring confidence in EPA decision-making.”

Whatever extension the EPA ends up with, it could use that time to kick off its own, separate rulemaking to undo the Trump rule.

Ignore for Now

In the meantime, the agency could keep working on other rulemakings as if the Trump rule essentially doesn’t exist, said Adam Finkel, a professor of environmental health at the University of Michigan.

Even if the rule survives, it won’t affect any of the EPA’s work until the next time it finalizes a major regulation which is then challenged in court, according to Finkel.

“This gives them a good, long time—maybe a year, maybe two—before it really matters,” he said.

The EPA remains committed to ensuring that its actions rest on a strong scientific foundation, said Jennifer Orme-Zavaleta, acting assistant administrator for the EPA’s Office of Research and Development who also serves as acting science adviser.

“It is essential that the environmental policies, decisions, guidance, and regulations that impact the lives of Americans are informed by the best available science,” she said in an email.

The EPA “will follow the science and law in accordance with the Biden-Harris administration’s executive orders and other directives in reviewing all of the agency’s actions issued under the previous administration,” an agency spokeswoman added.

Just hours before the Montana decision, Biden signed a memo pledging to use “well-established scientific processes” in federal decision-making, underscoring the strong likelihood that his administration will try to undo the rule.

‘Like Herpes’

Still another option is for the EPA to order a longer postponement under section 705 of the Administrative Procedure Act, which lets agencies stay effective dates if rules are being legally challenged, said Richard Revesz, an administrative law professor at New York University.

In addition to the Montana suit, a separate federal lawsuit has already been filed against the science transparency rule in New York.

Letting those suits play out, and hoping courts rule against the Trump regulation, is one way of nixing the rule permanently, said Dan Costa, who served as national program director of air, climate, and energy at EPA’s Office of Research and Development under President Barack Obama.

“This has been going on for 25 years,” said Costa, professor of environment sciences and engineering at University of North Carolina. “It’s like a herpes infection that comes back every few years to go after the environmental community to try to undermine the science. And it’ll come back again unless they come up with some way of putting it to rest in a permanent way.”

Role for Congress

Still another option is for Congress to invoke the Congressional Review Act, which gives the House and Senate time after a rule is finalized to scrap it with a simple majority vote, said Daniel Walters, an assistant professor at Penn State Law.

“At the end of the day, using the Congressional Review Act to nullify this rule prevents a future administration from issuing another rule that is substantially the same, and I think that prospect would be more attractive than a general rescission or vacatur in court for the Biden administration,” Walters said.

“I suspect they’ll return to the Congressional Review Act in the end, and this decision probably doesn’t affect that avenue,” he said.

But Mandy Gunasekara, a former EPA chief of staff during the Trump administration, questioned the wisdom of trying to scrap the rule at all.

“I hope the new administration resists the partisan temptation to undo our work, and instead builds off of our comprehensive efforts to increase public awareness and trust in the scientific underpinnings of agency decisions,” Gunasekara said.

(Updates with additional commentary in paragraphs 17 through 19.)

To contact the reporter on this story: Stephen Lee in Washington at stephenlee@bloombergindustry.com

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

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