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Court Kills Trump ‘Secret Science’ Rule in Win for Biden EPA (2)

Feb. 1, 2021, 2:27 PM; Updated: Feb. 1, 2021, 8:07 PM

A federal court has scrapped the Trump administration’s “science transparency” regulation, granting a request from the EPA in light of a recent decision casting doubt on the rule’s legality.

Lawyers for the Environmental Protection Agency on Sunday filed an unopposed request for the U.S. District Court for the District of Montana to vacate the rule and remand it to the agency. Chief Judge Brian Morris granted the request in a short order Monday.

The decision saves President Joe Biden’s administration the significant time and resources it would have had to spend to unwind the Trump administration rule through a standard rulemaking process.

“EPA’s quick action on this rule will make it easier for it to use science to pursue President Biden’s agenda to protect public health and address the climate crisis,” Anne Hedges, director of policy and legislative affairs for the Montana Environmental Information Center, said in a statement.

The Strengthening Transparency in Regulatory Science rule, also known as the “secret science” rule, restricts the EPA from crafting regulations based on scientific research that isn’t public or can’t be reproduced. Environmental advocates, scientists, and a coalition of left-leaning states and cities oppose the regulation.

The EPA’s request to vacate the rule pointed to the court’s Jan. 27 ruling that the agency, under President Donald Trump, violated federal law in making the contentious rule effective immediately upon its publication in the Federal Register, instead of after a customary 30-day waiting period.

‘Substantive’ Rule

The rule was substantive, not procedural, and therefore couldn’t bypass the 30-day period, Morris wrote last week. He added that the conclusion “casts into significant doubt whether EPA retains any legal basis to promulgate the Final Rule.”

The EPA then argued that the court should go a step further and toss the Trump rule entirely.

“Based on the Court’s conclusion that the Final Rule is a substantive rule, the sole source of authority for the rule’s promulgation cannot support the rulemaking,” the agency told the court Sunday. “In these circumstances, Defendants acknowledge that vacatur of the Final Rule is appropriate and therefore respectfully request that the Court vacate the Final Rule and remand the matter to EPA.”

The case is Envt’l Defense Fund v. EPA, D. Mont., No. 4:21-cv-00003, 2/1/21.

(Adds Hedges comment in fourth paragraph.)

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Chuck McCutcheon at cmccutcheon@bloombergindustry.com

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