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Censored Science, the CRA, and the End of Meta-Deregulation

Jan. 27, 2021, 9:01 AM

On Jan. 6, the same day that a mob attacked the U.S. Capitol, the Environmental Protection Agency finalized an effort to censor science. This rule is one of several meta-deregulatory actions the Trump administration issued, each seeking to hinder the promulgation of a broad set of regulations in one fell swoop, and doing great harm to public well-being in the process.

As the Biden administration seeks to undo this rule, along with over 100 other environmental deregulatory actions undertaken by the Trump administration, it can now make use of the most powerful tool in the arsenal: the Congressional Review Act (CRA). Now that Democrats control the House and Senate, they can deploy the tool more effectively and proceed even without Republican votes.

Using the tool also has downsides, but in the case of the “censored science” rule and some other meta-deregulatory actions with similar attributes, CRA disapprovals are the best course of action.

Benefits of Using CRA to Undo Regulations

Under the CRA, simple majorities of the House and the Senate can vote to disapprove regulations promulgated during the last 60 legislative days of the prior Congress—a period that began on August 21, 2020. Unlike regular legislation, Congressional Review Act disapprovals are not subject to the filibuster in the Senate and can therefore clear that chamber with only 50 votes (plus the tie-breaking vote of Vice President Kamala Harris).

The main benefit of using the CRA is that it can excise a regulation from the books very early in the administration and there is no subsequent judicial review with which to contend. In contrast, the principal alternative for undoing the Trump administration’s pernicious deregulatory output is for the relevant agencies to repeal or replace rules through notice-and-comment rulemaking—a laborious process that can easily take two years and is then typically followed by a year or more for challenges to work their way through the courts. And, of course, success in the courts is not guaranteed.

But CRA disapprovals are not a panacea. First, they require 10 hours of Senate debate, which is a prized commodity during the first 60 legislative days of the congressional session (when the CRA can be used), as the president wants to get his cabinet and subcabinet officials confirmed. For President Joe Biden, taking office in the midst of a terrible pandemic, approval of his relief package is a particularly pressing priority. And the impeachment trial of Donald Trump will inevitably consume significant Senate time.

Also, following a CRA disapproval, an agency cannot promulgate a rule that is “substantially the same” as the disapproved rule. The courts have never shed light on the meaning of this prohibition, but progressive groups have expressed concern that invoking the act might place a bar on future desirable regulation.

This concern is not particularly serious in instances where the Trump administration weakened Obama administration protections and the Biden administration would want to strengthen the Obama baseline. Under no plausible linguistic interpretation is weakening a baseline “substantially the same” as strengthening a baseline.

EPA’s ‘Censored Science’ Rule Is Ideal Candidate for CRA Disapproval

EPA’s “censored science” rule is an example of a rule for which a CRA disapproval is of highest value. The rule would seriously hamper the agency’s ability to rely on epidemiological studies revealing the adverse consequences of contaminants on human populations, unless the underlying health data of the participants in the study is publicly available.

Data of this sort is generally (and rightly) protected by confidentiality agreements that bar researchers from sharing it in a manner that would allow an individual to be identified. At the time EPA proposed the rule, it indicated that its approach was “informed by the policies recently adopted by some major scientific journals.” But the editors of the leading journals quickly responded that the agency’s assertion was simply untrue.

By excluding relevant research on the adverse consequences of pollution, in the hands of the Trump administration, the rule could have resulted in a significant number of additional premature deaths and adverse health consequences.

Three factors make the “censored science” rule an ideal candidate for CRA disapproval:

  • First, it does not need to be replaced: For its entire history, EPA’s science policies have worked just fine without a regulation of this sort.
  • Second, if left in place during the years that it would take for a repeal through notice-and-comment rulemaking, the rule would place hurdles on any regulatory effort that relied on epidemiological studies.
  • Third, a disapproval now would bar a future administration from doing “substantially the same” mischief in the future.

The “censored science” rule is not the only ideal candidate for CRA disapproval. Several other compelling meta-deregulatory examples include a Dec. 23, 2020, EPA rule that calls into question the reliance on indirect benefits, or co-benefits, in justifying air pollution rules, despite unanimous consensus in the economic literature that such an approach is unsupportable, and a Jan. 13 EPA rule that makes it impossible for the agency to regulate the greenhouse gas emissions of any industrial class other than power plants and oil and gas installations.

A Jan. 15 Department of Energy rule blocks stringent energy efficiency standards for furnaces, water heaters, and boilers. And, a Jan. 19 Department of Health and Human Services rule triggers the automatic revocation in five years of all of HHS rules that are 10 or more years old unless the department performs a retrospective review of the rules’ consequences—a task it cannot possibly do.

The calculus about when to seek a Congressional Review Act disapproval is a complicated one. Is the payoff sufficiently compelling to justify the allocation of considerable Senate time? Does it significantly ease the burden on the agency? Does it remove significant hurdles that stand in the way of the administration’s efforts to put its regulatory agenda in place? Are there potentially negative collateral consequences?

The meta-deregulatory rules published during the last month of the Trump administration, including the “censored science” rule, are the most compelling candidates for such disapprovals.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Richard L. Revesz is the AnBryce Professor of Law and Dean Emeritus at the New York University School of Law, where he directs the Institute for Policy Integrity.

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