EPA is trying to use a 19th-century statute giving department heads the right to manage personnel and internal record keeping to contain the science it uses when drafting regulations, including those on greenhouse gases.
The March supplementary proposal for a rule EPA bills as improving transparency of the science and modeling that underpin important agency work points to an obscure "housekeeping statute" enacted in 1874. It has roots in laws enacted under President Washington when early federal agencies were founded.
The proposed rule in question, known as "Strengthening Transparency in Regulatory Science," would banish long-used scientific studies from future rulemaking processes if they rely on data that isn't made public.
"EPA is authorized to promulgate this regulation under its housekeeping authority," the agency says in the supplemental proposal's preamble.
This is the first time EPA has used the Federal Housekeeping Statute in a rulemaking that isn't internally focused, and critics foresee legal problems. The law, which was amended in 1958, gives the heads of 15 "executive departments" and military departments broad discretion over internal operations.
But it may not apply to EPA, because the agency isn't an executive department. In the proposal's preamble, EPA asserts that the 1970 reorganization plan that created the agency also granted it the same housekeeping authorities, but some experts dispute that.
Critics say EPA's justification for using the rule is legally flimsy, whether the housekeeping law applies to it or not.
The agency's gambit highlights the lengths to which the Trump administration will go, critics say, to cement the president's anti-regulatory agenda ahead of a possible second term, or to try to tie the hands of subsequent administrations.
"For an administration that is audacious enough to invoke a statute that by its own terms does not apply to EPA, the sky's the limit," said John Walke, director of the climate and clean air program at the Natural Resources Defense Council.
Walke and others say the housekeeping law is likely to make repeat appearances in other rulemakings. A prime candidate might be EPA's forthcoming proposal to overhaul cost-benefit analyses for Clean Air Act rulemakings, which is undergoing White House review.
"Why not invoke that same statute to overhaul and sabotage the entire way that cost-benefit analyses are done under the Clean Air Act, or to authorize an invasion of Canada?" said Walke.
History of the housekeeping statute
For most of the housekeeping statute's long history, it has been relatively noncontroversial, though the 1958 amendment followed an important Supreme Court case in which the Department of Justice successfully argued that the statute authorized it to withhold documents a court had ordered it to disclose.
EPA has used housekeeping statute authorities in 82 actions since 1994, but almost all of them deal with acquisitions and contracts. And all are focused on internal matters, not outward-facing public policy. EPA most recently cited it when revising Freedom of Information Act regulations last year.
EPA argues in the so-called secret science supplemental proposal that changing the science and modeling that underlie rulemakings is an internal matter. The preamble states that the science rule deals with "internal agency procedure and EPA does not propose to interpret provisions of a particular statute or statutes that it administers."
But environmental attorneys say the proposed rule, by barring EPA from using the latest science in setting rules or maintaining models, would interfere with the agency's statutory responsibilities under the Clean Air Act, the Clean Water Act and other substantive statutes.
"It certainly hasn't been used independently as a basis for promulgating a rule that will effectively change the way the agency fulfills its statutory mandate," said Laura Bloomer, a legal fellow at Harvard Law School's Environmental & Energy Law Program. "I do think that this is just a different type of rule."
Although EPA hasn't used the housekeeping authorities to make public policy before, other agencies have — including during the Trump administration. Those rules don't have a good track record of withstanding legal challenges.
"For those of us who are skeptical of this use of the housekeeping statute, it's actually good news," said Sean Hecht, co-director of the UCLA School of Law Environmental Law Clinic. "The courts have looked at this before; it's not a novel legal issue, even though it has not come up with EPA."
The most recent example came last year, when a federal court in Northern California vacated a Department of Health and Human Services regulation that expanded protections for anti-abortion health care providers that accept federal funding.
The judge in that case found that the agencies involved "mistakenly rely on their 'housekeeping authority' to support their authority to promulgate the rule." The decision adds that the statute does not authorize HHS to "promulgate substantive rules."
Hecht said EPA would struggle to argue that a rule that effectively rewrites provisions of bedrock laws is not a substantive rule. Statutes like the Clean Air Act and the Toxic Substances Control Act have their own standards for the science EPA is directed to use in their rulemakings, and EPA's proposal seeks to override those to limit "influential" science to studies with publicly disclosed data.
"So that's a problem that EPA faces as it's trying to do things that violate the terms of the laws that Congress passed," said Hecht. "It has no legal authority that could justify that. That's not just a technicality."
Thomas Lorenzen, who defended EPA rules as a DOJ attorney under multiple administrations, said the federal housekeeping statute did provide EPA with some authorities to manage its own affairs. But he said the agency would do well to draw from other, more specific statutory authorities when promulgating its science rule.
"The question that I've long had is, aren't there other things that are more specific to particular statutes that could perhaps give further guidance as to what Congress intended for a particular agency and how much deference it should get?" he said.
EPA cited eight environmental laws in its first proposal for the science rule in 2018, and is still taking comment on those authorities. But the rule's critics say the fact that EPA shifted its strategy after taking public comment on the 2018 proposal shows it's struggling to find a legal justification to support the rule.
"EPA should be able to find its authority in one of its substantive statutes," said Bloomer, the Harvard fellow. "And the fact that EPA can't find that authority and got tons of comments saying it lacks that authority is a good indication of why they've now turned to this other statute that we've never seen much of."
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