Exhibit A: Science advisers’ critiques of EPA rules

By Pamela King, Jeremy P. Jacobs | 03/06/2020 01:32 PM EST

EPA’s science advisers have critiqued the Trump administration’s attempts to change the definition of the "waters of the U.S.," or WOTUS, and to walk back other marquee environmental rules. Legal experts say those criticisms could come back to haunt the agency when it defends those rules in court.

EPA’s science advisers have critiqued the Trump administration’s attempts to change the definition of the "waters of the U.S.," or WOTUS, and to walk back other marquee environmental rules. Legal experts say those criticisms could come back to haunt the agency when it defends those rules in court. EPA/Flickr

An EPA advisory panel’s sharp rebukes of the Trump administration’s Clean Water Act protections and vehicle emissions standards have provided a partial blueprint for how critics could challenge the rules in court.

EPA’s Science Advisory Board (SAB), which includes many members selected by the Trump administration, last week finalized striking criticisms of the agency’s proposed Safer Affordable Fuel-Efficient Vehicles Rule and its recently narrowed definition of the "waters of the United States," or WOTUS.

The board could also soon finalize two more draft reports taking aim at the Trump administration’s use of science in rulemaking and its rethinking of whether it is "appropriate and necessary" for EPA to regulate mercury and other pollutants from power plants (Greenwire, Jan. 2).


The SAB’s criticisms, legal experts say, are likely to be raised against EPA in court.

"When you have a very strong body of scientific opinion from within the agency itself, the courts look pretty skeptically of decisions that run counter to that — unless the agency heads come up with a persuasive reason," said Vermont Law School professor Pat Parenteau.

The 44-member SAB raised myriad concerns about the Trump administration’s efforts to whittle down the scope of which waterways and wetlands are subject to Clean Water Act protections. In particular, the board said that excluding groundwater, ephemeral streams and wetlands that connect to major bodies of water below the surface from protections runs afoul of the latest science (Greenwire, March 4).

Four of the SAB’s members declined to endorse the final commentary.

EPA said that while it "appreciates and respects" the advice of the SAB, the agency is limited by congressional authority and legal precedent from the Supreme Court. The SAB isn’t.

"The agency’s definition of ‘waters of the United States’ is informed by science," EPA spokeswoman Molly Block wrote in an email, "but science cannot dictate where to draw the line between federal and state or tribal waters, as those are legal distinctions established within the overall framework and construct of the Clean Water Act."

While the agency has yet to lock in final versions of three of the four rules the SAB has faulted, EPA and the Army Corps of Engineers issued the Trump administration’s WOTUS definition — known as the Navigable Waters Protection Rule — in January. It is due for publication in the Federal Register any day.

At that point, the floodgates of litigation will open.

Legal experts said the SAB’s commentary is relevant for challenges under the Administrative Procedure Act, which requires federal rulemaking to be transparent and well-reasoned.

"This is definitely something I’d imagine that plaintiffs will raise when they challenge the rule," said Amanda Cohen Leiter, an environmental law professor at American University and a former Interior Department official under the Obama administration.

"It seems like strong evidence that the rule is arbitrary and capricious."

The exact nature of the legal challenges against EPA’s forthcoming rules will depend a lot on how those regulations are fashioned, said Jeff Holmstead, a partner at Bracewell LLP and a former EPA official under the George W. Bush administration.

He added that he was confident that "anyone who wants to challenge EPA’s actions will be looking for anything they can use."

Throughout its revised WOTUS definition, EPA makes the argument that it has crafted a rule that is rooted in law, rather than science. And Block, the EPA spokeswoman, said the "substance" of the SAB comments was "raised by others" in the public comment period.

Some judges may find that position persuasive, said Larry Liebesman, a former Justice Department attorney who now works at the consulting firm Dawson & Associates.

But, he continued, the chances are higher that a court might find that EPA did not sufficiently address the SAB’s concerns when it finalized the rule before the board had finished reviewing it.

"From a timing standpoint, a judge could say EPA should have delayed the final rule and responded to SAB’s comments, but they didn’t," Liebesman said. "To me, that is a risk."

‘Policing the foul lines’

A recent legal battle over Clean Air Act protections offers some clues as to how a court might weigh the recommendations of EPA’s science advisers.

The U.S. Court of Appeals for the District of Columbia Circuit’s decision last year upholding Obama-era ozone standards heavily referenced EPA’s adherence to the advice of one of its expert panels, the Clean Air Scientific Advisory Committee (Greenwire, Aug. 23, 2019).

In contrast, a court could reprimand EPA for disregarding such guidance without a rational explanation for that decision, said Joseph Goffman, an Obama-era EPA official who is now at Harvard Law School.

"The way the D.C. Circuit expressed itself really invited the inference that if the agency hadn’t aligned itself in a thoughtful way with the science advisers, the court would have made a different decision," he said.

Parenteau of Vermont Law School said he sees lessons for EPA in a 1997 case in which a federal judge chastised the Fish and Wildlife Service for ignoring the advice of its own experts in deciding not to list the Canada lynx under the Endangered Species Act.

Judge Gladys Kessler, a Clinton appointee to the U.S. District Court for the District of Columbia, ruled that FWS’s decision not to protect the animal was "arbitrary and capricious" under the Administrative Procedure Act and must be set aside.

"That’s the kind of policing the foul lines that the courts are willing to engage in," Parenteau said.

"They’re not going to say that the experts decide or that their opinions control," he said, "but they’re going to require explanation if you run counter to that."

Ticking clock

If Democrats win control of the Senate and the presidency in the next election, any rule the Trump administration finalizes during the last half of this year could become vulnerable to both judicial and congressional review.

That means EPA doesn’t have a ton of time to respond to the SAB’s criticisms in its final rules, legal experts say. Even if it does, the APA requires that response to be well-documented in the public record.

In several spots throughout its revamped WOTUS definition, EPA and the Army Corps mention the SAB’s recommendations to adhere to the latest science on the connectivity of smaller resources to larger waterways that informed the Obama administration’s rule.

"[S]cience alone cannot dictate where to draw the line between Federal and State waters, as those are legal distinctions that have been established within the overall framework and construct of the CWA," the agencies wrote in their rule.

But a judge could find that those explanations are insufficient, said Caitlin McCoy, a clean air and energy fellow in Harvard Law School’s Environmental & Energy Law Program.

"All of that information still stands, and you have the SAB, too, calling EPA out and saying, ‘Where is the peer reviewed evidence for this change?’" she said.

"EPA continues to point to the statute itself and say, ‘Our hands are tied.’"

The agency is under the gun not only to protect its rules from getting struck down in the courts but also to prevent potential resolutions of disapproval under the Congressional Review Act, said Indiana University law professor Janet McCabe, who served as acting head of EPA’s air office under Obama.

The statute, which was used successfully only once before the Trump administration, allows rules to be rescinded with a simple majority in the House and Senate. Once a rule is revoked, a substantially similar regulation cannot be introduced to replace it.

"The more impactful the rule," McCabe said, "the more likely it is that someone would seek to use the CRA."