EPA ‘transparency’ rule provides basis to block new regulations

It’s the latest in a series of rules issued by the outgoing Trump administration as it prepares to hit the exits

EPA Administrator Andrew Wheeler at a Senate Environment and Public Works Committee hearing in May. (Al Drago/Bloomberg/POOL)
EPA Administrator Andrew Wheeler at a Senate Environment and Public Works Committee hearing in May. (Al Drago/Bloomberg/POOL)
Posted January 5, 2021 at 4:26pm

Environmental Protection Agency Administrator Andrew Wheeler says his agency has provided more than 50 briefings and thousands of pages of material to President-elect Joe Biden’s transition team.

But none of those briefings has focused on the final rule Wheeler announced Tuesday that requires the agency to give greater weight to scientific studies based on publicly available data.

With that lack of discussion, it’s unclear how the incoming Biden administration will approach the requirement, which could complicate its initial efforts to ratchet up public health protections. Wheeler described the new rule as an internal housekeeping matter, but he also said there’s a reason he opted for more than just a staff memo on the subject. Having an official rule creates a basis for lawsuits if a future administration tries to work around it.

“People will actually be able to take us to court if we don’t follow this regulation today,” Wheeler said. “So this empowers the American people to demand future transparency from this agency going forward.”

[EPA leaves ozone pollution standard unchanged]

It’s the latest in a series of rules issued by the outgoing Trump administration as it prepares to hit the exits. Wheeler unveiled the rule during an online forum with the Competitive Enterprise Institute. He touted the new requirement as a blow for transparency, even as critics said it would undermine regulators’ ability to consider the latest science in protecting public health.

At issue are “dose response” studies examining the harm resulting from exposure to particular amounts of a substance. Under the new rule, the agency must identify and make public the key scientific data it relies on. Critics say that could prevent the agency from considering important studies that often include personal health, proprietary business information or other confidential data.

To regulate a particular chemical or pesticide, the agency must show it causes harm. Doing that requires high-quality data, noted Chris Zarba, former director of the EPA Science Advisory Board.

“If the data goes away, then the agency can’t do its job,” Zarba said.

The EPA already undergoes an established and transparent scientific review process in considering regulations, said Zarba, who is part of the Environmental Protection Network, a group of former EPA officials.

Top priority

That group has offered detailed recommendations on actions the Biden administration should take out of the gate. One of the recommendations at the top of Zarba’s list is to get rid of the new transparency rule.

“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,” Zarba said.

He said the best mechanism for the Biden administration to roll back the new rule remains to be seen, but whichever they choose is expected to take up staff attention.

“It will be a consumption of time and energy that a new administration will have to take on, and of course, there’s not an unlimited amount,” Zarba said.

Congress also could attempt to override the new rule through fresh legislation.

Rep. Donald S. Beyer Jr., D-Va., said in a statement Tuesday that the new rule would weaken the scientific foundations of the agency’s public health regulations.

“President-elect Biden should eliminate this rule at his earliest opportunity, and Congress should consider accelerating its removal,” Beyer said.

Wheeler said the new rule is exempt from the Congressional Review Act, however, because it represents an internal agency matter, does not substantially affect outside parties and does not involve a high enough cost.

He defended the rule in part by saying it still would allow consideration of studies that include confidential data by giving independent experts restricted access or by masking personally identifiable information. Such masking processes can be expensive and unwieldy, however.

He also noted that the administrator would continue to have the discretion to waive the rule and include any studies considered pivotal.

“The American public deserves to know which studies we are using to craft our regulations and which of those studies are key, or pivotal, to our decisions,” Wheeler said. “And, to the extent possible, that data should be available for the public to see.”