EPA asks court to toss 'secret science' rule
By: Rachel Frazin (TheHill)
Data? Who needs stinkin' data to impose environmental regulations?
S E E D E D C O N T E N T
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.
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.
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.
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Anything and everything the Trump administration did was bad. That's the only argument needed.
EPA certainly doesn't want to be bothered with reviewing publicly available data. Polar bears, puppies, and chubby infants would die, after all.
This seems like a weird thing to object to.
I don't get it. How does the simple act of making data available for scrutiny impact outcomes?
OK, is it doing that? I can see keeping the names of people private, but surely data is still available?
That's a common dirty trick employed by the EPA. EPA wasn't created to be a public health agency. EPA wasn't created to save polar bears, puppies, or chubby infants.
The EPA was created to protect the environment. Protecting the environment also helps protect polar bears, puppies, ect by proxy. A healthy environment also contributes to optimal public health.
That's correct. EPA doesn't need public health data because public health is not EPA's responsibility.
However, it seems that when EPA is required to be more transparent in its rule making the go to excuse is privacy concerns over public health data. It's not the job of EPA to perform public health studies; EPA only needs limits and guidelines established by those responsible for public health.
Public health data can be utilized by the EPA to find environmental effects and correlations to better adopt or refine guidelines and recommendations. And vice versa.
So let's say there is a study of people effected by the lead in the water in Flint. That study contains all those participants health data, their habits, their drug histories. Those who participate do so because they are told that information is going to be kept private. Later, the study has some inciteful findings as to water quality and makes recommendations based on those findings. Under the attempted Trump administration rules, the EPA would be barred from suing that data in their decision making as to drinking water safety simply because those who were participants want their health histories to remain private. That is not good science. The EPA should be allowed to use scientific data whether it is publicly available or not. Do you want your kids or grandkids to be put at risk simply because the EPA says "Well, we knew about the threat posed to drinking water by fracking close to residential water sources but we couldn't do anything about it because those studied wanted to keep their health data private..."? Do you think you might sue if the risk was known but not allowed to be used and because the EPA had no control over certain substances in the air or water that your kids develop life long ailments or even die?
That's fine. Don't make a record of their names. You can still collect the data. But instead of Joe Smith, it will be Subject 260 or something.