Overnight Energy: EPA revamps 'secret science' rule | Scientists warn rule still limits research | Trump calls for full funding for conservation program | 19 states sue over border wall funding

Overnight Energy: EPA revamps 'secret science' rule | Scientists warn rule still limits research | Trump calls for full funding for conservation program | 19 states sue over border wall funding
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LATEST IN FIGHT OVER 'SECRET SCIENCE': The Environmental Protection Agency (EPA) walked back a component of one its most controversial proposal Thursday, weakening an effort that would have restricted the agency from considering scientific studies that don't make their underlying data public.

The tweaks are not garnering support from the scientific community, however, as it expands the 2018 proposal in other ways.

The so-called "Secret Science" proposal, a nickname given when it was first pushed by former Administrator Scott PruittEdward (Scott) Scott PruittJuan Williams: Swamp creature at the White House Science protections must be enforceable Conspicuous by their absence from the Republican Convention MORE, spurred over 600,000 comments, many of which criticized the agency for penning policy that would block consideration of some landmark public health research. 

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The administration has argued the rule is necessary for transparency, but it has struggled with how to offer a workaround for key studies that wouldn't be able to share their data publicly without exposing subjects' personal information.

It's Thursday update doesn't abandon the policy's underlying goal, but rather than exclude some research entirely, the agency would now give preference to studies with public data.

"Other things being equal, the agency will give greater consideration to studies where the underlying data and models are available in a manner sufficient for independent validation," EPA wrote in the new proposal. 

But the newest version of the rule would also apply this standard more broadly, covering an even wider variety of scientific research. It also expands its scope, putting the "Secret Science" principles in practice not just when EPA weighs a new regulation but also in other agency activities.

Betsy Southerland, who was director of the Office of Science and Technology at the EPA's Office of Water under the Obama administration, said those features make the proposal worse overall by expanding its reach. 

Scientists also argue it will still favor certain research and give the administration the political power to ignore studies that conflict with their policy goals.

"They are basically going to say the studies where the data is publicly available are better than studies where the data isn't publicly available, irrespective of how good and important the science and the evidence is," said Andrew Rosenberg with the Union of Concerned Scientists.

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"It's totally not scientific and nonsensical."

Read more about the new proposal here

 

HAPPY SUPER TUESDAY! Welcome to Overnight Energy, The Hill's roundup of the latest energy and environment news. Please send tips and comments to Rebecca Beitsch at rbeitsch@thehill.com. Follow her on Twitter: @rebeccabeitsch. Reach Rachel Frazin at rfrazin@thehill.com or follow her on Twitter: @RachelFrazin.

 

FLIP FLOP: President TrumpDonald John TrumpBubba Wallace to be driver of Michael Jordan, Denny Hamlin NASCAR team Graham: GOP will confirm Trump's Supreme Court nominee before the election Southwest Airlines, unions call for six-month extension of government aid MORE on Tuesday called on Congress to fully fund a conservation program that his budget has repeatedly sought to cut.

The Land and Water Conservation Fund (LWCF) uses oil and gas revenue to fund a variety of conservation efforts, such as securing land for parks. But Trump has suggested cutting its funding by as much as 97 percent year after year, including in his most recent budget proposal.

"I am calling on Congress to send me a Bill that fully and permanently funds the LWCF and restores our National Parks," Trump tweeted. "When I sign it into law, it will be HISTORIC for our beautiful public lands. ALL thanks to @SenCoryGardner and @SteveDaines, two GREAT Conservative Leaders!"

Congress has repeatedly ignored Trump's suggestion to slash the popular program, but they've also failed to get the $900 million to fully fund it. 

Last year Sens. Cory GardnerCory Scott GardnerGraham: GOP will confirm Trump's Supreme Court nominee before the election Gardner signals support for taking up Supreme Court nominee this year Tumultuous court battle upends fight for Senate MORE (R-Colo.) and Steve DainesSteven (Steve) David DainesMcConnell locks down key GOP votes in Supreme Court fight Will Republicans' rank hypocrisy hinder their rush to replace Ginsburg? Toobin: McConnell engaging in 'greatest act of hypocrisy in American political history' with Ginsburg replacement vote MORE (R-Mont.) were part of a bipartisan effort to fully fund LCFW, but the budget ultimately included only about half the funding for the program.

Trump's tweet proceeded an announcement from Daines and Gardner that they would seek permanent full funding for LWCF.

The story is here.

 

ANOTHER DAY, ANOTHER BORDER SUIT: A coalition of 19 states is suing the Trump administration over its new diversion of $3.8 billion in defense funds to the border wall, arguing that the move is unconstitutional and ignores possible environmental impacts. 

"Use of these additional federal funds for the construction of a border wall is contrary to Congress's intent and in violation of the U.S. Constitution," said the lawsuit, which was filed in federal court in California on Tuesday. 

President Trump last year declared a national emergency and announced that he would reallocate Department of Defense (DOD) funds for construction of the border wall after Congress did not allocate as much money as he wanted for the project in the federal budget.

Last month, the Pentagon informed Congress that it would transfer an additional $3.8 billion to be used for the wall, with money coming from weapons programs. 

The 19 states are arguing that the new allocation is unconstitutional because it violates the separation of powers as well as Congress's power of the purse. 

They also argue that the administration does not sufficiently evaluate the environmental impacts of the project and that this violates a bedrock environmental law called the National Environmental Policy Act. 

The states suing the administration are: California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia and Wisconsin.

The suit says environmental harm will particularly be caused to some of these states where the wall is being built, including "the blocking of wildlife migration, flooding, and habitat loss" in New Mexico.

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Read more here.

 

In other legal news…

 

NOT KIDDING AROUND: Attorneys for 21 youth climate activists are filing an appeal after a judge ruled they cannot sue the federal government for failure to act on climate change.

The activists sought a court order to force the government to phase out the use of fossil fuels, but a panel of three judges in January ruled such a decision was beyond the reach of the judicial branch. 

Lawyers are now petitioning for a ruling from all 11 judges in the 9th Circuit, arguing that reversing an earlier district court decision fails to ensure the youth activists' right to a trial. 

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"In overturning the district court, the majority fundamentally changed the way our branches of our government operate, placing the president and Congress beyond the reach of judicial oversight. If this opinion stands, there will be no more constitutional checks and balances on government conduct," Philip Gregory, a co-counsel for the youth plaintiffs, argued. 

In August, two of the three judges said they did not have the power to push the government to address climate change.

Read more here.

 

URANIUM ON THE CRANIUM: Energy Secretary Dan Brouillette said Tuesday that the Trump administration plans to give a boost to the uranium industry, which it has repeatedly tried to help.  

Brouillette responded "yes" to a question from Sen. John BarrassoJohn Anthony BarrassoMurkowski: Supreme Court nominee should not be taken up before election Battle lines drawn on precedent in Supreme Court fight Sunday shows - Ruth Bader Ginsburg's death dominates MORE (R-Wyo.) about whether the administration is "prepared to provide immediate relief for the uranium producers."

"[The Department of] Commerce, along with the U.S. Department of Energy, the president of the United States -- all determined that the loss of leadership in the nuclear industry represented a national security concern," he said during a hearing at the Senate Energy and Natural Resources Committee. 

The administration has in the past bolstered the industry including by adding uranium to a list of "critical minerals" deemed crucial to national security.

The Commerce Department has also issued a recommendation to help speed up production of all minerals on the list.

 

The committee also grilled Brouillette about Trump's budget proposal: Brouillette defended President Trump's proposed cuts to renewable energy in his budget request for fiscal 2021. 

"It's kind of a who's who of backwards policy," said Sen. Angus KingAngus KingShakespeare Theatre Company goes virtual for 'Will on the Hill...or Won't They?' On The Trail: How Nancy Pelosi could improbably become president Angus King: Ending election security briefings 'looks like a pre-cover-up' MORE (I-Maine). "We want more efficient vehicles so let's cut vehicle technologies by 81 percent. Or bioenergy technologies -- let's cut that by 82 percent ... solar minus 76, wind minus 78."

Brouillette, in response, said that departmental research and development was being done "complex-wide" and that in some cases, the cuts were offset by research in other areas. 

The energy chief also took heat from King and others over the proposed elimination of the Advanced Research Projects Agency-Energy (ARPA-E).

"You did something that I didn't think was possible, you cut something 173 percent. Now, the reason that's possible is that you didn't spend a significant part of the funds that were allocated by the Congress last year," King said. "Not spending a substantial portion of the funds that Congress allocates is not following the law."

Brouillette replied that the agency has to properly vet applicants who want to use the money for their projects.  

"It's not just the question of getting the money and moving it out the door, it's getting applicants on the other side that are fully qualified to receive the money," he said.

 

A busy day for the committee... The committee also advanced James Danly's nomination to be a commissioner of the Federal Energy Regulatory Commission to the full Senate in a 12-8 vote. 

Read more here

 

ENERGY AMENDMENTS: A battle over what amendments might be considered for the Senate's major energy package is prompting some Republican infighting.

Sens. John KennedyJohn Neely KennedyMORE (R-La.) and Tom CarperThomas (Tom) Richard CarperDemocrat asks for probe of EPA's use of politically appointed lawyers Overnight Energy: Study links coronavirus mortality to air pollution exposure | Low-income, minority households pay more for utilities: report OVERNIGHT ENERGY: Democrats push resolution to battle climate change, sluggish economy and racial injustice | Senators reach compromise on greenhouse gas amendment stalling energy bill | Trump courts Florida voters with offshore drilling moratorium MORE (D-Del.) are pushing to add legislation to limit use of heat-trapping hydrofluorocarbons (HFC) in refrigerators and air conditioners.

Sen. John Barrasso (R-Wyo.) has expressed opposition to the measure, which irked Kennedy. 

"I came up here to debate and decide not to participate in delay and stultification. And I will be very disappointed if my amendment is not allowed to be considered by the United States Senate over the objections of a very small group of people. That's not democracy," Kennedy told reporters Tuesday. "That's why god made roll call votes."

It's not yet clear what amendments might be considered for the American Energy Innovation Act, but they are accumulating quickly, with 18 already entered into the record and several more expected.

Democrats have said they hope to add amendments that would force the bill to more directly address climate change, though an amendment from Sen. Mazie HironoMazie Keiko HironoDemocrats unveil plan declaring racism a public health issue Overnight Defense: US, Russia trade blame over Syria incident | Pentagon calls out China's 'counterproductive' military exercises, missile test | Democrats press Esper on COVID-19 response Democrats press Esper on 'concerning' rise in Pentagon's COVID-19 cases MORE (D-Hawaii) prompting research and development goals for climate change is the first to explicitly mention the subject.

Still, she has doubts the legislation will transform into a climate bill.

"I don't think there's any chance that we're actually going to have amendments that reflect the acknowledgement that climate change is upon us and we have to do something much more dramatic," she said. 

 

ON TAP TOMORROW:

The House Natural Resources Committee will review Interior's budget.

The House Energy and Commerce Committee will hold a hearing on reforming recycling.

House Appropriations will hold a hearing on the National Nuclear Security Administration budget.

The appropriations panel will also review the EPA's budget, with Administrator Andrew WheelerAndrew WheelerOVERNIGHT ENERGY: Wheeler seeks to paint EPA regulatory rollbacks as environmentally friendly | Former EPA chiefs endorse Biden, criticize agency under Trump | White House opposes House energy bill as Democrats promise climate action Former EPA chiefs endorse Biden, criticize agency direction under Trump Wheeler seeks to paint EPA regulatory rollbacks as environmentally friendly MORE testifying.

The Senate Appropriations Committee will hold a hearing on the Interior budget with Secretary David Bernhardt.

The Senate Environment and Public Works Committee will hold a hearing on the Nuclear Regulatory Commission.

The Senate Energy and Natural Resources Committee will hold hearing on a number of bills dealing with national parks.

 

OUTSIDE THE BELTWAY:

Rhode Island state lawmakers considering ban on 'forever chemicals,' the Providence Journal reports

Coal tech company's bid to mine clears major hurdle, the Casper Star-Tribune reports

EU states call for speedy 2030 climate plan ahead of U.N. climate summit, Reuters reports

 

ICYMI: Stories from Tuesday...

19 states sue Trump administration over reallocated funding for border wall

Trump calls for full funding for conservation program after slashing it in his budget

Youth activists appeal ruling that they can't sue government over climate change

Brouillette says administration plans to give a boost to uranium producers