Just days after saying a Trump administration effort to preclude scientific studies where privacy concerns rendered the underlying data unavailable, a federal judge vacated the rule at the request of the Biden administration.
(CN) – A federal judge in Montana on Monday vacated a rule promulgated during the waning days of the Trump that would have limited the type of scientific studies used by the U.S. Environmental Protection Agency when making policy decisions, finding it hadn’t gone through the appropriate process.
U.S. District Court Judge Brian Morris vacated the rule at the request of the Biden administration’s EPA, days after Morris found said the Trump administration’s effort to skip a 30-day public comment period was illegal.
“Defendants explain that in light of the court’s conclusion that the final rule constitutes a substantive rule, the Environmental Protection Agency lacked the authorization to promulgate the rule pursuant to its housekeeping authority, which is the only source of authority identified in the final rule,” Morris wrote in a terse 2-page ruling issued Monday.
A housekeeping rule does not necessitate a lengthy public process, whereas a substantive decision, as legally defined, does.
Morris concluded the EPA miscategorized the recent “secret science” rule as a housekeeping matter in order to skip the public process and accelerate its publication in the Federal Register.
He ordered the EPA to reinstate the 30-day comment period before finalizing the rule, but his Monday order vacating that rule essentially ends consideration of its implementation — especially since the Biden administration requested the rule be withdrawn.
Critics of the rule argue that limiting the range of acceptable studies to only those where the underlying data is publicly available would disqualify a whole trove of public health studies where the data is kept secret, often out of privacy concerns for study participants.
“Privacy laws are trying to protect people from these types of disclosures,” said Anne Hedges, director of policy and legislative affairs for the Montana Environmental Information Center, last week. “If this law were passed you couldn’t use a suite of studies, even if they’re peer-reviewed.”
Scientists, particularly those involved with public health, often rely on the private health information of individuals to draw conclusions about the impacts of air particulate matter or contaminants in water on human health. If the last-minute decision had been allowed to stand, it would have precluded a raft of public health studies from being considered by the EPA.
“The Trump administration worked on this rule for two and half years and they failed to get it done and then on the way out the door they tried to pull a fast one,” Hedges said. “It was a parting shot and a cheap shot.”
But Monday’s decision also demonstrates the degree to which it was a long shot.
After Morris, an Obama appointee, ruled last week, he asked both parties to brief the question of whether the rule in question was housekeeping or substantive. Since the Biden administration now controls the EPA, its lawyers essentially agreed with the plaintiffs and made Morris’s ruling a foregone conclusion.
Some environmental rollbacks passed by the Trump administration and opposed by President Joe Biden will take longer to unwind, to the extent they can be undone at all. But many of the midnight regulations promulgated by Trump on the way out the door — particularly those passed without the necessary process — will not prove particularly difficult to overturn if the Biden administration so desires.
The EPA under Trump has long argued that transparency in science is necessary for the agency to restore confidence in agency decision-making rather than blindly relying on the conclusions of experts. The Trump administration touted the rule as one way to do just that.
But environmentalists see the transparency argument as cover for an effort to reduce science-based decision making while providing a sop to industry lobbyists.
“Today’s decision is great news for EPA’s ability to use rigorous, lifesaving science to protect all Americans from dangerous pollution and toxic chemicals,” said Ben Levitan of co-plaintiff Environmental Defense Fund, in a statement released Monday.