In a parting gift, EPA finalizes rules to limit its use of science

A bird stands on a tube snaking through the water.
Enlarge / BARATARIA BAY, Lousiana – JULY 14: A young seagull rests on a boom used to contain the oil spill July 14, 2010. In the future, should this bird be killed by the oil, nobody could be held responsible.

With the days counting down to the inauguration of President-elect Joe Biden, the Trump administration has been undertaking a series of actions that will make it more difficult for its replacements to reverse any of its policies or pursue new ones. This is especially true in the area of environmental regulations, where both the Environmental Protection Agency and the Department of Interior have recently issued decisions.

Over the last few days, Interior has issued new rules that will allow industries to kill migratory birds with impunity, and the department has moved ahead with plans to lease portions of the Arctic National Wildlife Refuge for drilling tomorrow. Meanwhile, the EPA has finally pushed through a new rule that could severely limit the ability of the agency to establish future regulations. The only small bit of consolation is that the EPA’s final rule is less awful than some earlier drafts.

Only the science we like

The EPA’s new rule, which will be formally published tomorrow, is an attempt to set additional standards for the evidence it considers when establishing new regulations for pollutants. In principle, the rule sounds great: it wants the data behind the scientific papers it uses to be made publicly available before it can be used to support regulatory decisions. In reality, the rule is problematic, because many of these studies rely on patient records that need to be kept confidential. In other cases, the organizations with the best information on some environmental hazards are the companies that produce or work with them, and they may not be interested in sharing proprietary data.

The practical result of this sort of change is that the EPA would be precluded from relying on scientific papers that contained the clearest indications of public harm. This would almost certainly lead to weaker rules or a decision not to regulate at all.

The attempt to handcuff the EPA has a long history, with congressional attempts to enshrine it in law dating to early in the Trump administration, and drafts of the current rule having circulated within the EPA for years. The New York Times has even traced the idea back to the tobacco industry’s fight against second-hand smoke regulations.

The federal rule-making process requires agencies to incorporate public feedback on draft versions to be incorporated into the final rule, and that was the case here. As a result, the new rule is considerably less damaging to the EPA. As the final version notes, “This rule has a much narrower scope than the 2018 proposed rule.” The original rule had applied to both models of public exposure and dose-response studies of their health impacts be made public; the final version only applies to the dose-response studies. It no longer requires that the EPA perform its own peer review of published peer-reviewed studies and now allows the EPA administrator to allow exceptions that enable the use of studies where the data isn’t publicly available.

Regulations that have been established in the past are now explicitly grandfathered in, although the new rule would apply if a re-evaluation of risks takes place. A large number of overly broad definitions were also tightened up and made more specific in the final version. All of these changes were suggested in the public feedback phase of the rule-making process.

Despite the changes, the final rule will mean that the EPA administrator, a political appointee, will potentially need to be involved in determining which science the agency can consider in setting regulations. Regulations will still be possible, but it will be more difficult to pursue them, and they are likely to be less stringent. Despite that, the EPA contends that it’s doing all of this because it favors public access to data: “The EPA disagrees with the contention that this rule is politically motivated, as transparency assumes no political ideology, nor is this rule likely to result in decreased human health or environmental protections, as the benefits of greater data transparency and the significance of reanalyzing and validating study results are well-documented in scientific literature.”

Interior is not for the birds

The EPA was not alone in attempting to undercut existing environmental regulations. On Tuesday, the Department of Interior published a new regulation that modifies how it will enforce the Migratory Bird Treaty Act. This Act prohibits the killing of the migratory birds that are its subject, and it has been one of the ways the government has punished companies for causing widespread environmental damage that caused bird deaths. The new rule essentially says that oil spills are fine, since they weren’t done with the intention of killing birds.

Secretary of the Interior David Bernhardt said, “This rule simply reaffirms the original meaning and intent of the Migratory Bird Treaty Act by making it clear that the US Fish and Wildlife Service will not prosecute landowners, industry and other individuals for accidentally killing a migratory bird.”

Industry may still face legal jeopardy under the Endangered Species Act and other environmental regulations, but the rule change means that it can otherwise kill birds with impunity, as no industrial activities are pursued explicitly to kill birds.

The move comes the day before the Department of the Interior is scheduled to host an auction of drilling rights in the Arctic National Wildlife Refuge, potentially ending a battle between environmentalists and oil companies that has been going on for decades. A suit to block the auction is pending in Alaska, but it’s not clear if any action will be taken before Wednesday.

Normal, and less so

Efforts to push policy priorities through before a new administration takes office have become commonplace in recent years. Typically, these follow a common course: the new rule prompts lawsuits that prevent it from taking effect. The new administration tells the court it’s withdrawing the rule but then has to take the time to go through the full formal rule-making process to reverse it. Including the time to formulate a new rule, push it through the public comment period, and craft the final rule, this can mean that many of the last-minute changes aren’t reversed until halfway through the new administration’s first term.

That’s the likely fate of the changes to the Migratory Bird Treaty Act. But the drilling leases, since they directly involve sales to commercial concerns, are likely to be far more difficult to roll back once issued. And the changes at the EPA appear to be part of a concerted effort to make all future environmental regulations more difficult to enact.

Earlier this year, the EPA issued new regulations that included the determination that evidence from epidemiology wasn’t sufficient on its own to justify future regulations. Like the new rule on scientific evidence, this appears designed to eliminate the use of most of the scientific evidence that underpins environmental regulations. Epidemiology is how we estimate average exposures for populations and link that to health outcomes in those populations. The only realistic alternative is to install monitoring equipment and then compare that to individual health outcomes, a far more expensive and complex form of study.

The EPA has also acted to make future regulations harder to justify on economic grounds. In April, the Trump EPA announced that it wouldn’t take indirect benefits of regulations into account when performing a cost/benefit analysis. This means that if a regulation would avoid $1 in contamination cleanup but save $1 billion in health costs, only the cleanup costs could be considered.

Overall, these rules will make it much harder to gather evidence to justify regulations on scientific grounds and nearly impossible to justify them on economic ones. Their presence will make it extremely difficult for the Biden EPA to do anything until they are reversed.

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