‘Transparency’ and the New EPA Pollution Rule: Ripe for CRA Overturn by the New Congress

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

Second only to its record on seating federal judges,  one of the greatest services the Trump administration has rendered to its corporate clientele, is in gutting and rolling back Environemental Protection Agency (EPA) protections.

Last week, EPA Administrator Andrew Wheeler announced the new “Strengthening Transparency in Regulatory Science” rule via ZOOM to the Competitive Enterprise Institute, a libertarian think tank, as reported by Science in Trump’s new rule restricting EPA’s use of certain science could have short life:

“What this new rule will do, undoubtedly, is provide the transparency needed to allow the public the opportunity to check our work,” Wheeler says. “Transparency is a defense of, not an attack on, important work done by our career scientists here at EPA, along with their colleagues at research institutions.”

Wheeler took a victory canter the Wall Street Journal’s op-ed page, taking credit for implementing a key conservative priority in Why We’re Ending the EPA’s Reliance on Secret Science:

The task of science is one of test and retest, analysis and comparison, over and over. It is slow and careful work, done in the open. Only rarely has science benefited from secrecy, and that is usually for reasons of national security. The geniuses of the Manhattan Project who built the atomic bomb, the mavericks of Cape Canaveral who sent men to the moon, these giants did their work behind high walls, and for good reason.

But the work of the Environmental Protection Agency—to protect human health and the environment—shouldn’t be exempt from public scrutiny. This is why we are promulgating a rule to make the agency’s scientific processes more transparent.

Too often Congress shirks its responsibility and defers important decisions to regulatory agencies. These regulators then invoke science to justify their actions, often without letting the public study the underlying data. Part of transparency is making sure the public knows what the agency bases its decisions on. When agencies defer to experts in private without review from citizens, distinctions get flattened and the testing and deliberation of science is precluded.

Although Wheeler’s rhetoric may sound sensible, it is highly misleading. The rule was enacted over the strenuous opposition of most of the scientific community. As per Science:

Health scientists have warned that the new EPA policy, which has been under development for years and takes effect today, will interfere with current and future research if it stays in place. It would require EPA scientists and rulemakers in many cases to discount studies in which the underlying data aren’t available for outside scrutiny. Although a study could be exempted from the requirement, that would require the approval of the EPA administrator.

As the WSJ reports in EPA to Give Preference to Scientific Studies That Disclose Data:

The policy change, in the works since the start of the Trump administration, has been opposed by public-health experts, scientists and former staff who say it could undermine the agency’s effectiveness.

Many public-health studies rely on information about individual patient health that is required to be kept confidential, which may now exclude groundbreaking health findings from EPA consideration, these critics say.

I must hand it to Wheeler’s EPA for what is a textbook example of chutzpah: adopting a new rule that would discard reams and reams of scientific evidence on the grounds of improving transparency.

Yet rather than represent any long-lasting shift in US policy, the scientists will have the last laugh. Rather than shutting down the use of settled and valid scientific studies, this episode may instead signal that the apogee of an anti-science approach to EPA  rule-making.

Last week Democratic candidates won both  run-off elections for Senate seats to represent , Georgia’s voters, giving their party  control of that chamber in the new Congress. The Democratic majority may therefore invoke the Congressional Review Act (CR) and overturn via a simple majority vote this instance of ‘midnight’ rule making – as the Trump administration did sixteen times  times 4 years ago (see Trump EPA Poised to Weaken Obama Methane Rule, Despite Possibility of Later CRA Overturn). Now that they will control white House, House, and Senate, Democrats are expected to overturn severalTrump rules enacted since August, roughly the date at which CRA requirements kicked in in the event Trump lost the election. To be sure, Democrats must proceed cautiously in areas in which they might wish to conduct future regulations, as invoking the CRA precludes further rule-making if the area covered is “substantially the same” unless further Congressional authorisation occurs. The scope of these restrictions is not yet fully plumbed, as I previously wrote in the post cited above:

CRA is a one-way deregulatory ratchet, and rules overturned under its auspices may not be easily revisited by the incoming administration. Many legal issues related to the CRA scope of the are unresolved, however. Although the statute dates to 1996, and was part of Newt Gingrich’s Contract with America, it had only been used once before Trump…

Democrats are already assessing their CRA priorities and the EPA transparency provision tops the list, according to E & E News, Senate Democrats eye quick repeal of Trump rules:

Experts caution that the CRA, which requires only a simple majority of both chambers, could backfire on Democrats. If they use the law to block a Trump rule, the administration could be barred from drafting a regulation that is “substantially the same.”

“In effect, the CRA is like a rubber mallet that can smash rules opposed by Congress, but it destroys the possibility of fixing them,” said Dan Weiss, a longtime environmental consultant.

The law does not define “substantially the same,” nor does it say who should, and the matter has never been tested in court. Experts say Democrats may be fearful.

“If they are not already doing this, Democrats need to do some soul-searching on whether or not they want to go down this road,” said James Goodwin, a regulatory scholar with the Center for Progressive Reform. “It would effectively legitimize this law — there’s no putting the toothpaste back in the tube.”

Other advocates suggest Democrats should take the risk.

“It’s the quickest way to get rid of policies that will cause significant harms to the health of Americans and to the quality of our environment,” said Ricky Revesz, a New York University professor whose name has been mentioned as a possible Biden regulatory chief.

Revesz specifically pointed to the EPA science “transparency rule,” which EPA announced yesterday, and the EPA cost-benefit rewrite for air regulations that was finalized last month.

Both rules could impede the Biden team’s initial ability to achieve climate and environmental goals like cutting carbon emissions from the power sector.

Yesterday, EPA chief Andrew Wheeler argued that the “transparency rule” — which has generated overwhelming opposition among Democrats and public health groups nationwide — would not be eligible for the CRA, calling it a procedural matter. But experts have questioned his logic (E&E Daily, Jan. 6)

The CRA is not the only approach for overturning Trump measures,including the transparency rule, as the Guardian recognized in a piece published before the run-off results were known, Trump administration pollution rule strikes final blow against environment:

Many of the changes face court challenges and can be reversed by executive action or by lengthier bureaucratic process. But undoing them would take time and effort by the incoming Biden administration, which also has ambitious goals to fight climate-damaging fossil fuel emissions and lessen the impact of pollutants on lower-income and minority communities.

With Democrats winning a Senate majority, the CRA is now in play, and that changes the whole ball game, making overturn of at least some of the Trump midnight rules far, far easier under the simplified CRA procedures.

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