• Mark Ryan

Court Rejects EPA Defense of New Science Rule

The Trump administration worked for years on promulgating a new rule that would limit what scientific studies EPA could use in future rulemakings. See 86 Fed. Reg. 469 (Jan. 6, 2021) ("Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information). By limiting EPA's ability to rely on epidemiological studies where the underlying subjects were not identified for privacy reasons, the new rule would have significantly limited EPA's ability to consider data that would support tighter regulation where studies showed harm to certain groups of people.

The District of Montana just dealt a setback to the new Trump rule.The rule went final on January 6, 2021, shortly before the change in administrations. Plaintiffs filed a motion for summary judgment on an expedited calendar, arguing that the rule violated the APA when it was designated to go into effect immediately upon publication. The court agreed, and declared the rule not effective for 30 days.

The court also threw doubt on whether the rule would survive challenge once the substantive issues were addressed. The main issue was whether the rule was substantive or procedural. A procedural rule can go into effect immediately. The court stated, "The Final Rule's status becomes particularly clear when one examines what is missing - any kind of procedure." Because EPA promulgated the rule under the Federal Housekeeping Act, which applies to procedural rules, it will likely fail when the court gets to the main issue in the case.

Environmental Def. Fund v. EPA, 2021 WL 270246 (D. Mt. 2021) (on motion for summary judgment in case challenging EPA’s new science rule, held that EPA improperly made the rule effective upon notice in the Federal Register; because the rule was substantive and not procedural, EPA was required to wait 30 days for the rule to go into effect; EPA failed to establish good cause for shortening the implantation date; plaintiffs established injury in fact to support standing)

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