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An EPA stealth assault on the rule of law

An EPA stealth assault on the rule of law
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On the same day the rule of law was violently assaulted on Capitol Hill, Trump’s Environmental Protection Agency (EPA) stealthily attacked the legal framework that federal agencies must use when they issue substantive regulations. 

Deploying an old tobacco industry trick, Trump’s EPA finalized a “transparency rule” that will limit use of scientific evidence about the human health risks of environmental pollutants. 

Worse, the EPA declared the rule effective immediately, claiming it was not subject to the delayed effective date or other rulemaking requirements of the Administrative Procedure Act (APA) and that Congress had no authority to review it under the Congressional Review Act (CRA).  

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The “transparency” rule discounts scientific evidence of health risks from particular levels of pollution — no matter how relevant or compelling — unless the underlying data supporting the studies are publicly available. The problem is, these criteria limit consideration of much of the most important research on human subjects, which typically includes medical records and other information that can’t be released because of privacy concerns. 

It’s no secret that the rule, another salvo in the Trump administration's war on science, is scientifically unsupportable. When the EPA “voluntarily” sought comments on earlier proposals, there were nearly a million comments and strong condemnation from the scientific community and the public. 

And, while Trump’s EPA cloaks its attack on science in concern for transparency, it is making government rulemaking a lot less transparent. The heart of the process that has governed agency rulemaking for three quarters of a century is the APA requirement that gives the public advance notice of substantive rules and an opportunity to comment. Another law, the CRA, gives Congress authority to review new rules.   

The EPA now claims it has discovered a magic power under the federal Housekeeping Statute that it can use to circumvent these legal requirements. That statute, which has been hiding in plain sight in one form or another since 1789, was enacted so that George Washington’s Cabinet agencies could organize themselves. 

The Housekeeping Statute authorizes an agency to “prescribe regulations” governing itself and “the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property.” A 1958 amendment clarifies that the law “does not authorize withholding information from the public or limiting the availability of records to the public.”

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Remarkably, the EPA now claims that this law authorizes it to limit how it uses information on the human health impacts of environmental pollution when it sets pollution standards. While the EPA does not further stretch credulity by arguing that the first Congress intended this when it enacted the Housekeeping Act, it argues most strenuously that it has housekeeping authority. But it does not identify a single case in which that authority has ever been used by the EPA for any purpose or by any other agency to restrict the use of science in rulemaking, as the agency is attempting here. 

The EPA’s only explanation for its evidently unprecedented use of its housekeeping authority consists of repeatedly insisting that the rule is purely internal and procedural. It asserts that the rule does “not regulate the rights and obligations of any party outside of the EPA let alone have legal force and effect on them,” and has no more than “incidental impacts on voluntary behavior outside of the EPA.” As if to prove its point solely by repetition, the EPA uses the word “procedural” more than a dozen times. But, saying a rule is procedural — or an election is fraudulent — does not make it so. 

But when describing the rule’s broad effects, the EPA abundantly demonstrates that this is not a routine procedural or housekeeping rule. Indeed, the EPA says the rule addresses the use of science in the “most impactful” and “significant” EPA regulatory actions, which will have “a clear and substantial impact on important public policies or private sector decisions.” The rule will affect regulatory actions with “an annual effect on the economy of $100 million or more,” (a previous EPA notice puts the figure at $500 million).  

Moreover, the EPA says the rule is so important it must take immediate effect because it clarifies the role of “data underlying pivotal science to be used in significant regulatory decisions and influential scientific information” and, thus, “is crucial for ensuring confidence in EPA decision-making.” 

Clearly, the EPA’s claim that the rule governs purely procedural matters with no effect outside it is preposterous. Whether the annual external effects are $100 million or $500 million or more, the rule addresses far more than internal EPA housekeeping. Conversely, if a rule with such sweeping effects can lawfully be issued under the Housekeeping Act, so can a host of other rules, by EPA and other agencies, that address how much weight to assign evidence in rulemaking. Such a radical expansion of the housekeeping authority would severely undercut, if not eviscerate, the statutory limits the APA and CRA impose on the rulemaking process. 

Plainly, this is not a housekeeping rule. And because the sole legal basis the EPA identifies for the rule is the Housekeeping Statute, the rule has no valid legal basis and is, therefore, unlawful and must be set aside. The rule of law demands no less.

David F. Coursen is a former EPA attorney and a member of the Environmental Protection Network, a nonprofit organization of EPA alumni working to protect the agency's progress toward clean air, water, land and climate protection.