EPA yesterday evening released a controversial proposal to limit the scientific research used in the federal rulemaking process.
Greens have already vowed to sue the agency.
The draft "Strengthening Transparency in Regulatory Science" is part of the agency’s persistent effort to rework the foundation on which public health and environmental rules are crafted.
The draft released yesterday builds on a 2018 proposal issued by then-EPA Administrator Scott Pruitt, who at the time declared that "the era of secret science at EPA is coming to an end." Now his successor, Andrew Wheeler, has sought to shore up shortcomings in the initial proposal while expanding the scope to cover all the agency’s scientific information — not just what’s used in rulemaking.
"These additions and clarifications to the proposed rule will ensure that the science supporting the agency’s decisions is transparent and available for independent validation while still maintaining protection of confidential and personally identifiable information," said Wheeler.
EPA set a public comment period of 30 days. Critics say that short timeline for a sweeping proposal indicates the agency intends to finalize the rule as soon as possible.
Opponents of the rule say the latest draft makes it even worse.
"It’s increasing the damage of the proposed rule," said Betsy Southerland, former director of EPA’s Office of Science and Technology and a member of the Environmental Protection Network. "No. 1, it expands the scope of the rule, and No. 2, by no means does it demonstrate they have a legal authority to do this rulemaking."
More generally, she stressed that the draft fails to identify a need. Critics have long maintained that publicizing all data in rulemaking is impractical for a host of reasons but, more importantly, a solution in search of a problem.
"They are working hand in glove with industry," she said. The fear among progressives is that the proposal would ease regulations for air pollution, for instance, which would benefit the energy industry.
Another significant change in the draft is that it could apply to all EPA "influential science" — not just science used in regulatory efforts, noted Gretchen Goldman, an expert with the Union of Concerned Scientists.
"What EPA is saying here is that it wants political control over what research is used in any of the agency’s work," UCS’s Michael Halpern added.
Last fall, EPA vehemently pushed back against news reports that suggested the proposal might apply retroactively to data used in already established rules. The New York Times first published a leaked version of the supplemental notice, and EPA issued a press release attacking the reporting. EPA countered that the leaked draft was not the one sent to the White House Office of Management and Budget for review.
The recently released draft does have some word changes, but, as Halpern pointed out, it’s unknown which changes OMB added. Halpern suspected OMB added details and citations.
"Both the leaked draft and this one greatly expand the research that is subject to the rule," he wrote this morning via email. "Both give the administrator complete discretion to decide what studies are subject to the rule and what studies are not. Both would apply to all research, regardless of when it was developed. Both fail to articulate the problem they are trying to solve. Both fail to assess costs to the agency and to researchers."
The recently released draft also introduces the idea of setting up a complicated system that allows scientific research used by the agency to be accessible in a tiered approach, he noted.
Environmentalists have long feared the agency hopes to jettison Harvard University’s "Six Cities Study" completed in 1993 that forms the basis for air quality standards. The agency denied that intent.
On that point, the latest draft seeks comment on "whether this should apply only to data and models that are generated (i.e., when the development of the data set or model has been completed or updated) after the effective date of this rulemaking." Old data in cardboard boxes or on floppy disks, for example, might not be available, observers have noted.
If the agency rushes to finalize the rule, the effort could have lasting impacts on policymaking even if President Trump loses reelection in November.
Observers note the agency hopes to finalize the rule by May to avoid the possibility that a Democratic-controlled Congress and a Democratic president could overturn the rule using the Congressional Review Act (Climatewire, March 4).
"If they are hellbent to get this out by May, they could do it," Southerland said.