By David J. Hayes
November 14, 2019
Earlier this week, the New York Times obtained a leaked copy of a supplemental notice of proposed rulemaking that the Environmental Protection Agency (EPA) reportedly has submitted to the White House’s Office of Management and Budget for review. The supplemental notice proposes “clarifications, modifications and additions” to the highly-controversial, so-called “secret science” proposed rule that the EPA published on April 30, 2018. In the name of “Strengthening Transparency in Regulatory Science,” that proposal sought to disqualify peer-reviewed scientific studies from regulatory consideration whenever medical privacy or similar considerations precluded the studies’ underlying data from being disclosed to the public.
The April 2018 “secret science” proposal triggered an avalanche of criticism from the legal, science, and advocacy worlds. Harsh comments came from all corners, including from the very top of the scientific community – the three Presidents of the National Academy of Sciences, Engineering and Medicine. Closer to home, 23 state attorneys general and county and city attorneys joined in submitting 33 single-spaced pages of critical comments on the proposal. Among other points, state AGs emphasized that the EPA has no authority to establish new rules that preclude the use of peer-reviewed scientific studies when the Clean Air Act and other environmental laws require that the EPA apply “the latest scientific knowledge,” “the best available science,” and “the best available public health information” when promulgating regulations.
Given the strong opposition to the April 2018 proposal, most observers expected that the EPA’s “secret science” proposal would die a quiet death. Not so, apparently. The leaked version of the supplemental notice suggests that it’s full speed ahead with the highly-criticized proposal. The supplemental notice reconfirms the basic concepts laid out in the original proposal, while offering some surprising add-ons. Game on, again.
Three take-aways from the supplemental notice stand out for me.
First, the EPA apparently is abandoning its reliance on environmental statutes as the legal basis for its proposed rule. This makes some sense, given that the environmental laws provide no support for (and, indeed, undercut) the proposal’s preemptory disqualification of peer-reviewed science whenever underlying data are not readily available to the public.
In its stead, however, the EPA is falling back on an obscure “federal housekeeping” statute as the sole authority for its rule. This may be a legal death sentence for the proposal. As the State AGs previously pointed out, the housekeeping statute is “simply a grant of authority to the agency to regulate its own affairs”; it provides no authority to deviate from the environmental laws’ directives to rely on the “best available” science when promulgating regulations.
Second, the EPA is modifying its original proposal to expand the scope of the scientific studies that it can disqualify from consideration under its proposed rule. The April 2018 proposal was limited to “dose-response studies and models.” Now, the EPA is considering “broadening its applicability” to enable the disqualification of “all data and models.”
Third, despite the EPA press office’s protestations, the supplemental notice indicates that the EPA’s preclusive science policy will have retroactive implications. The notice states that the EPA may dock data and models’ use as “pivotal regulatory science. . . regardless of when they were generated.” This means that whenever the EPA revisits air pollution standards that have been informed by epidemiology studies like the Harvard Six Cities study – foundational to our understanding of the dangers of air pollution – it will henceforth give less weight to those peer-reviewed studies - or even exclude them altogether from consideration.
We will need to wait and see if the administration continues to move forward with its seriously flawed, anti-science regulatory proposal. At this point, all bets against it are off.
David J. Hayes is a nationally recognized environmental, energy and natural resources lawyer who leads the State Energy & Environmental Impact Center.