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EPA’s ‘Secret Science’ Rule Taken to Court by States, Cities

Jan. 19, 2021, 8:38 PM

A coalition of 18 states, one county, and the nation’s three biggest cities sued the EPA on Tuesday in New York federal court over a final rule that restricts how science can be used in future agency rulemaking.

The state and local governments, led by New York state, alleged that the Federal Housekeeping Statute—which the Environmental Protection Agency relied on the as the basis of its Strengthening Transparency in Regulatory Science rule—grants no authority to the agency. The EPA doesn’t appear on the list of executive departments covered by the statute.

The rule also clashes with the EPA’s duty to use the latest scientific knowledge in regulating under the Clean Air Act, Clean Water Act, and other statutes, according to the suit, filed in the U.S. District Court for the Southern District of New York.

Moreover, the agency acted arbitrarily and capriciously by “failing to provide a reasoned explanation of how or why EPA’s longstanding practices are inadequate,” the plaintiffs said in the complaint.

They also said the rule will force them to spend resources doing their own research and enacting more protective standards than the EPA’s. Some states have limited expertise to do that, according to the suit.

Sharp Break

The rule, which took effect on Jan. 6, restricts the agency’s ability to use scientific studies that include patients’ private medical data when issuing regulations. It represents a sharp break from an decades-old approach to new rules, which relied on those kinds of studies to issue some of its most expansive regulations, including air quality standards for fine particle pollution.

EPA Administrator Andrew Wheeler said it promotes transparency and doesn’t categorically rule out any scientific studies. Any future administrator could still use pivotal studies if the underlying information isn’t publicly available, as long as an explanation is provided, he said at a Jan. 5 online briefing hosted by the Competitive Enterprise Institute.

The incoming Biden administration is facing pressure from the rule’s critics to undo it, with some legal observers citing 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.

Other states joining the suit include California, Pennsylvania, Illinois, Michigan, and New Jersey. Only one of the states involved in the litigation—North Carolina—swung for President Donald Trump in the 2020 election. Also included were New York City, Los Angeles, and Chicago, as well as King County, Wash., which encompasses Seattle.

The suit follows a complaint filed by the Environmental Defense Fund in the U.S. District Court for the District of Montana, Great Falls Division, which raised many of the same arguments.

Cause of Action: Administrative Procedure Act.

Relief: Declaratory and injunctive relief.

Response: The EPA didn’t immediately return a request for comment, but the agency generally doesn’t comment on pending litigation.

Attorneys: The plaintiffs are representing themselves.

The case is: State of New York v. EPA, S.D.N.Y., No. 1:21-cv-00462, complaint filed 1/19/21

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

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com

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