Midnight Watch: Regulatory Processes

EPA Restrictions on Use of Science in Rulemakings

In March 2020, the EPA released a supplemental proposal to modify and expand its April 2018 proposal to limit the agency’s reliance on scientific studies that do not provide public access to all underlying data and methodologies. The new proposal directs the agency to give preference to studies with public data — a change from the agency’s original proposal to disqualify studies without public data altogether — but extends the original proposal’s restrictions beyond formal rulemaking processes to apply to all of the EPA’s science and research. The proposed restrictions are “a ‘solution’ in search of a problem” and “will only detract from the robustly transparent peer review process that EPA currently uses to evaluate the integrity of scientific studies and modeling,” as state attorneys general emphasized in comments filed in May 2020. The EPA's final rule has been under review at the White House since September 2020, and could be published during the transition period.

🔴NEW DEVELOPMENTS: The EPA published the final rule on January 6. A coalition of 18 state attorneys general challenged the final rule on January 19.

Changes to Cost-Benefit Analysis of Clean Air Act Regulations

In June 2020, the EPA proposed drastic changes to its approach to cost-benefit analyses of environmental regulations under the Clean Air Act. The proposal would establish a one-size-fits-all methodology for cost-benefit analyses, and would bar consideration of co-benefits, which result from reductions in pollutants that are not the direct subject of the regulation. In August 2020, state attorneys general filed comments objecting to the proposal, emphasizing that failing to consider co-benefits not only disregards fundamental economic principles but violates EPA’s statutory duties and undercuts the agency’s core mission to protect human health and the environment.

🔴NEW DEVELOPMENT: The EPA published the final rule on December 23. A coalition of 18 state attorneys general challenged the final rule on January 19.

Changes to Regulatory Enforcement

In January 2020, the White House Office of Management and Budget (OMB) issued a request for information regarding potential changes to regulatory enforcement and adjudication. In the request, OMB solicited proposals that would limit the ability of federal agencies to investigate and enforce laws that protect the environment, public health and civil rights. OMB presented no evidence or examples of deficiencies in the current enforcement system, as state attorneys general emphasized in comments filed in March 2020. The attorneys general highlighted that enforcement actions under this administration have actually declined, contradicting OMB’s premise that enforcement actions are increasing. The proposal could be finalized during the transition period.

Changes to NEPA Analysis of Transportation Infrastructure Projects

On November 23, the Transportation Department proposed changes to its National Environmental Policy Act (NEPA) procedures. Comments on the proposal were due December 23, 2020, which may provide the Transportation Department with sufficient time to finalize the rule before Inauguration Day. 

NEPA requires that before the Transportation Department provides funds to construct a transportation infrastructure project, such as expanding a highway or building a light rail line, it must conduct a NEPA analysis of the project’s potential environmental impacts, including greenhouse gas emissions. Nearly all transportation infrastructure projects receive some level of federal funding and thus are subject to NEPA.

The proposal would roll back the Transportation Department’s NEPA requirements to mirror the Council on Environmental Quality’s July 2020 final rule that eliminated several key, long-standing NEPA obligations — including, for example, the requirement to analyze climate-related and other “cumulative” and “indirect” environmental effects. The changes would limit the ability of federal agencies, including the Transportation Department, to comprehensively evaluate the impacts of their actions on the environment and public health, as state attorneys general warned in comments filed in March 2020.