The EPA’s “Secret Science” rule establishing new standards for consideration of certain “pivotal” scientific studies, which was slated to go into effect on January 6, 2021, has been vacated and remanded by the U.S. District Court for the District of Montana. The decision follows one from a few days prior in which the court rejected EPA’s attempt to make the rule immediately effective. Notably, both decisions rely on the same basic principle — that the rule is not merely procedural, as EPA claimed, but substantive. That determination could be important for other rules that the Trump EPA viewed as procedural in nature, but that have been challenged as having substantive effect.
Originally, the so-called “Secret Science” rule was slated to go into effect immediately upon publication in the Federal Register, based on EPA’s claim that it was only an administrative rule that should be exempt from notice-and-comment under the Administrative Procedure Act (APA). The court rejected this argument in an initial decision issued on January 27 that delayed the rule’s implementation, granting a motion for summary judgement by environmental groups challenging the rule. In that decision, the court held that the rule is no mere housekeeping measure, but rather directed EPA how to weigh evidence, and thus had important substantive implications for future rulemaking actions.
The court’s February 1 ruling applies that same thinking — that the rule is not merely administrative in nature, but substantive — to vacate it entirely. Since the court had already held in its January 27 opinion that the rule was too substantive to fall within the exception to the APA, the court likely concluded that it exceeded EPA’s “housekeeping” authority to govern its internal affairs under 5 U.S.C. 301, which EPA had originally identified as the legal basis for the rule.
Notably, it wasn’t the challengers to the rule that asked for vacatur, but EPA itself. While the first decision in late January, which held that the rule did not qualify to go into effect immediately, granted a motion filed by challengers, the second motion to vacate the rule granted EPA’s own motion for vacatur and remand. The fact that EPA filed a motion to seek vacatur of its own rule just days after inauguration shows the Biden EPA has hit the ground running in trying to reverse highly controversial policies from the Trump administration. The district court’s decision could have implications for several EPA measures adopted to improve transparency during the Trump administration that were based on the agency’s housekeeping authority, including a rule governing the adoption and rescission of significant guidance issued in September 2020.
