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Goodwin: Censored Science Rule Lacks Legal Basis

Climate Justice Responsive Government

Every four years, as presidential elections draw near, the political appointees driving the incumbent administration's regulatory agenda put their feet on the gas, working to cover as much ground as they can before their boss's term is up. It makes no difference whether the current White House occupant is running for reelection or heading off into presidential library-land; they all want to get as much done while they control the steering wheel.

The one thing that usually constrains them, particularly first-termers, is the politics of the moment. Candidates for reelection aren't interested in seeing their agencies promulgate rules that will inflame opposition, and retiring presidents worry a lot about their legacy and aren't so eager to tarnish it with firestorm-inducing midnight regulations. That, at least, has been the norm. But as with so many other things about the Trump administration, standard rules don't apply. And so, we're seeing a spasm of bad regulating as November draws near. For Trump, gutting health and safety protections and inflaming opposition is all perfectly on brand.

One of several such initiatives his administration has undertaken is one with particularly far-reaching effects because it seeks to tie the hands of regulators seeking to protect health and the environment well into the future. With its proposed "censored science" rule, quite misleadingly advertised as having to do with strengthening transparency, the EPA would make it harder for future agency administrators to develop standards to protect public health and the environment by barring the consideration of much of the science that usually undergirds such rules.

Among other things, the rule would require the public release of underlying data for studies that regulators considered while developing proposed regulations. That would knock out the many studies that shield data because doing otherwise would reveal personal health information about study participants. Since public health considerations are supposed to be a primary concern for EPA – when regulating the effects of air pollution, water pollution, toxics, etc. – the inclusion of data about health impacts is critical.

Knocking such studies out of the process is not a bug in the rule, of course; it's the point. The Trump EPA wants to eliminate as much sound science as it can, so it can rely instead on industry-manufactured pseudo-science. And by imposing a rule to accomplish as much, EPA's current administrator, coal-industry alum Andrew Wheeler, hopes to box in his successors.

EPA has been working on its censored science rule since before former Administrator Scott Pruitt left in disgrace in 2018, and formal comments on its latest proposal are due in mid-May. CPR plans to submit comments then, covering the broad scope of the proposal's many failings, among them that it will prioritize studies with publicly available data over those that meet the highest scientific standards, and that by opening the door to reevaluating long-since-adopted rules by the new standards, EPA will spend precious staff resources reanalyzing peer-reviewed research and weakening existing rules rather than focusing on new and emerging hazards. None of that promotes transparency, EPA's asserted interest.

Earlier this week, CPR's James Goodwin participated in a virtual public hearing conducted by the Union of Concerned Scientists, in which he focused on one particular aspect of the rule: EPA's lack of legal authority to issue it.

Quoting Goodwin,
The failure of EPA to identify a colorable legal basis for this rulemaking is emblematic of this administration’s brazen disregard for the rule of law. The original proposal laughably gestures at EPA’s various authorizing statutes as legal authority. The ridicule this claim engendered appears to have spurred one of the most significant aspects of the supplemental proposal – namely, the new claim that this rulemaking is authorized by the Federal Housekeeping Statute.
This argument has two critical flaws, though. First, the Federal Housekeeping Statute doesn’t apply to EPA – only Executive Departments. Second, even if the statute did apply to EPA, it would not supply the legal basis for something like this rulemaking.

When CPR submits its comments in May, we'll be sure to highlight them in this space. Meantime, you can read James Goodwin's testimony on the rule's AWOL legal underpinnings, here.

Climate Justice Responsive Government

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