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EPA asks court to toss 'secret science' rule

The Environmental Protection Agency (EPA) is asking a court to throw out a Trump administration rule that critics say will undermine the use of public health studies in agency rulemaking.

The agency asked a federal district court in Montana to vacate the rule following a prior ruling against the Trump administration’s move to fast-track it, arguing that there was no legal basis left for it.

"Based on the Court’s conclusion that the Final Rule is a substantive rule, the sole source of authority for the rule’s promulgation cannot support the rulemaking," government lawyers said in court. 

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The Trump EPA classified the rule as procedural, rather than substantive, which allowed it to become effective immediately under the agency’s housekeeping authority rather than having to wait for the standard 30 days after federal register publication.

Brian Morris, a federal judge in Montana appointed by former President Obama, ruled against this action last week, determining that the rule was substantial rather than procedural.

That decision delayed it from going into effect, making it subject to a Biden administration freeze and review on Trump-era rules that were not yet effective. 

On Monday, the rule appeared to be under White House review

The rule in question would restrict the EPA’s use of studies that don’t make their underlying data publicly available. 

Trump administration officials billed it as a transparency measure, and a way to combat “secret science.” Opponents warned that it could hamstring the use of major health studies that keep their data under wraps for legitimate reasons like privacy. 

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The rule didn’t eliminate the use of all studies with private data but gave preference to those with public data. 

In his ruling last week, Morris argued that the rule was substantive, not procedural, because it “determines outcomes rather than process.”

“The Final Rule’s status becomes particularly clear when one examines what it is missing — any kind of procedure. EPA itself noted in its rulemaking that it would have to issue future guidance on how the rule operates procedurally,” he wrote.