The Trump administration continued its streak of swan song environmental regulations with the finalization of a rule that restricts which scientific research can be used to craft environmental regulations, giving polluters more cause to challenge those regulations in court.
The U.S. Environmental Protection Agency finalized the rule, called "Strengthening Transparency in Regulatory Science," which requires the agency to determine which scientific research is pivotal to a proposed environmental rule in order to give that research “greater consideration.”
The rule requires that dose-response data, or data that shows the relationship between the amount of a pollutant or contaminant and its effect on people or the environment, be made available for independent validation.
EPA Administrator Andrew Wheeler announced the final rule in a online forum hosted by the climate change-denying thinktank, the Competitive Enterprise Institute. Wheeler said the new rule would provide the transparency needed to allow the public the opportunity to verify the agency’s work.
“Transparency is a defense of, not an attack on, the important work done by our career scientists here at EPA, along with our colleagues from research institutions around the country. To restrict scientific inquiry would violate everything this agency has done over the past 50 years to improve human health and the environment. We believe this new rule will support the best science and strengthen the legal defense of our rulemakings,” said Wheeler.
The rule was originally written by former Representative Lamar Smith, now a lobbyist for the oil and gas industry, who worked with Wheeler’s predecessor, former EPA administrator and current energy lobbyist in Indiana Scott Pruitt, to craft the rule after multiple attempts to pass similar rules in the Congress failed to become law.
Pruitt resigned after a series of controversies, but the rule was introduced in 2018, amended and finalized just weeks before the end of the Trump administration and Wheeler’s tenure as EPA administrator.
Critics of the rule said it was designed to restrict the science used to justify stronger clean air and water protections.
“The rule, written by an anti-science, industry-funded special-interest individual, finalized by Wheeler, doesn’t ensure transparency in science, but rather is detrimental to high-quality impartial decision-making on behalf of the health and safety of the public,” said Chris Zarba, former director the EPA’s Science Advisory Board and the National Center for Environmental Research in a statement to the Indiana Environmental Reporter.
“If left unchallenged, this rule would essentially bar the agency from using the most relevant medical studies when creating rules about air pollution, toxic chemicals, water contaminants, and more and could force the agency to revoke decades of clean air protections.”
Medical studies used in environmental regulations often contain private medical information. Critics said the rule would allow the EPA to disregard crucial health studies unless private information is released.
That could affect future studies that collect private information from Hoosiers and other Americans, like the EPA’s Integrated Science Assessment for Lead, a study that compiled data from research on lead levels in soil and the people who lived near the lead in Indianapolis and dozens of other cities.
Wheeler said the rule would not require the disclosure of personally identifiable information.
“PPI data does not have to be disclosed to the public. Studies can still be used. If the underlying data cannot be available to the public, it can be made available through restricted access. In addition to that, the underlying data can be made available and oftentimes is,” said Wheeler.
“At the end of the day, if there is an important study that involves PPI data, and it can’t be independently reviewed, you can’t grant restricted access, but is still important because it’s needed as a pivotal study, the administrator of the agency can say this study can still be used for regulatory purposes.”
The rule will only apply to future rulemakings, meaning the research restrictions will not apply to data used in rules put in place during the Trump administration or earlier.
The regulation, like other rules finalized in the Trump administration’s final months, gives polluters more standing in lawsuits launched against EPA regulations.
“So, what we’re saying from this point forward is that there will be a cause of action. People will actually be able to take us to court if we don’t follow this regulation today. So, this empowers the American people to demand future transparency from this agency going forward. That was why we thought it was important to make it as a rulemaking instead of just as a memo from myself to the staff on how to conduct regulatory rulemakings,” said Wheeler.
The incoming Biden administration has several avenues it could take to reverse the rule, including invoking administrative laws or letting the rule get struck down through lawsuits.
Dozens of health and medical associations, including the American Academy of Pediatrics, American Lung Association and the National Association of County and City Health Officials oppose the rule.