Science and environmental groups are celebrating triumph in their nearly decadelong battle against efforts to limit the kinds of scientific evidence that the Environmental Protection Agency (EPA) can use in writing new regulations.
A federal judge this week killed a controversial rule, issued late in former President Donald Trump’s administration, that would have allowed EPA to ignore or downplay data from human health studies resting on confidential medical information that is difficult to make public. The agency has long relied on such nonpublic data in developing new regulations to limit air and water pollution or reduce exposure to toxic substances such as workplace chemicals and cigarette smoke. Conservatives and some companies had long pushed to restrict the practice. But the Trump administration’s bid to do so violated procedural rules, ruled Judge Brian Morris of the U.S. District Court of Montana in a lawsuit brought by three environmental groups.
The 1 February ruling, which President Joe Biden’s administration has welcomed, “is fantastic news. … I think this puts a stake through the rule’s heart,” says Andrew Rosenberg, director of the Center for Science and Democracy at the Union of Concerned Scientists, which helped lead the opposition to the rule. “It was a terrible, unjustified idea that never should have plagued us for so long, and the judge recognized that.”
The Trump rule, issued 5 January, marked the culmination of a long-standing effort by industry groups and Republicans in Congress. One early goal was to prevent regulatory agencies from using data indicating harm from exposure to second-hand cigarette smoke. The focus later shifted to data collected during large, multicity epidemiological studies that revealed the health toll of air pollutants, particularly tiny particles produced by the burning of fossil fuels. These studies included detailed data about specific people—such as medical records—that could not be released to the public because of privacy and legal concerns. Industry groups and their allies argued that limitation meant outside groups could not adequately review or replicate the studies. They launched an array of legal and legislative campaigns designed to force agencies and researchers to divulge confidential data, and to prevent federal regulators from using what they dubbed “secret science.”
Those campaigns, however, often ended in failure. Even when Republicans controlled Congress, for example, backers of secret science bills failed to attract enough support to enact them into law. But their efforts gained new life when Trump took office in 2017. His EPA appointees began an internal effort to write a new policy—which they called a “transparency” policy—that would bar the agency from using data that were not publicly available.
Those efforts quickly faced complications and fierce opposition. For example, both agency staff and industry officials reviewing early drafts of the proposal raised concerns that it would have unintended consequences for companies, perhaps barring EPA from using confidential industry-generated data needed to approve new pesticides and industrial chemicals. Many firms did not want to be forced to divulge what they consider to be trade secrets.
Science advocacy and environmental groups, meanwhile, began an intensive campaign against what they called the “censored science” rule. It was little more than a thinly veiled attempt to “help big polluters avoid regulations that protect human health,” the American Thoracic Society, a medical group, warned at the time. A draft transparency rule EPA released in 2018 drew more than 500,000 comments expressing concerns. Even other federal agencies, including the Department of Defense, worried the rule might affect their ability to protect the environment and human health and would be costly to implement.
In March 2020, EPA released a revised version that attempted to sidestep much of the criticism. Opponents, however, argued it was even worse than the original. In particular, they asserted that it greatly expanded the kinds of research affected by the rule, and gave EPA officials far greater discretion in deciding what kinds of findings the agency could and could not use.
Once again, EPA received a cascade of critical comments. But the agency largely ignored that input when it released the final version early last month. And many critics argued the agency made questionable legal claims in asserting it could impose the policy immediately, before the new administration took power, without the usual 30-day waiting period for new regulations. In essence, EPA argued the policy simply spelled out internal “housekeeping” measures, so it was exempt from the procedural requirements and from review by Congress.
Three groups—the Environmental Defense Fund (EDF), the Montana Environmental Information Center, and Citizens for Clean Energy—immediately went to court to challenge EPA’s claims. On 27 January, they won a preliminary skirmish when Morris delayed implementation of the policy until 5 February, giving him time to consider other aspects of the case. On Monday, 1 day after the Biden administration signaled it was siding with the environmental groups, Morris went further, ruling that EPA had no legal authority to issue the policy. The agency “lacked authorization to promulgate the rule pursuant to its housekeeping authority, which is the only source of authority [it] identified,” Morris wrote.
Opponents were jubilant. The “censored science rule was a flagrantly unlawful attempt to restrict EPA from using important scientific studies,” said EDF senior attorney Benjamin Levitan in a statement. “We’re glad the court recognized that and put a stop to it.”
Technically, the policy has been vacated and returned to EPA for another rewrite. But that’s unlikely to happen within the next 4 years: EPA spokesperson Lindsay Hamilton told The Washington Post the Biden administration has already signaled it has no interest in limiting the ability of federal agencies to use “the best available science.”
Still, some supporters of the Trump rule hope the Biden administration will preserve elements of the rule. “The decision is unfortunate but does not change the goal of the science transparency rule, which I would urge the new administration to support: Enhance the public trust in agency actions and improve regulatory outcomes,” Mandy Gunasekara, who was a senior EPA official under Trump, told the Post.
Rosenberg, for one, says it’s hard to believe the saga is truly over for now. In the past few years, he’s trekked to Capitol Hill at least three times to testify before Congress against the policy, and has spent countless hours helping organize the opposition. “It’s been such a zombie proposal, it’s just gone on, and on, and on,” he says. “So, I’m always worried it will rise again.”
But he also says the Montana decision “shows the power of science advocacy.” The EPA policy was technical and relatively obscure, Rosenberg notes, “and could have just slipped by. … But by being engaged and speaking out, even when it seemed like nobody was listening, [the research community] made a difference. Without that, it would have been much tougher to make the case that this was misguided. I mean, in the middle of a pandemic, we’re arguing over whether epidemiological evidence is worthy of consideration? Really?”