Foley Hoag LLP - Environmental Law

Last month, I noted that the Trump administration had suffered “one final judicial defeat” – the rejection of its Affordable Clean Energy Rule.  Of course, I spoke to soon.  Last week, Judge Brian Morris rejected EPA’s rule “Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information” – also known as the “Secret Science Rule.” 

The Secret Science Rule was promulgated on January 6, 2021, just before Andrew Wheeler’s exit as EPA administrator, and after more than two years of rulemaking.  EPA stated that the rule was not subject to the APA’s notice provisions, both because it was “housekeeping”, rather than substantive, and because – don’t laugh – the crisis of confidence in EPA rulemaking was so significant that the order couldn’t wait.  Of course, January 20 had nothing to do with it.

Judge Morris rejected both arguments.  And, like many other courts reviewing the Trump administration’s regulations, Judge Morris’s language could serve as a summary of the Trump administration’s deregulatory efforts as a whole.  First, he eviscerated EPA’s claim that the rule was procedural, rather than substantive:

The Final Rule instead makes a substantive determination of how the agency should weigh particular scientific information in future rulemakings. The Final Rule determines outcomes rather than process. The Final Rule’s status becomes particularly clear when one examines what it is missing—any kind of procedure. (My emphasis.)

Then Judge Morris eviscerated (such a good word, I had to use it twice), EPA’s argument that the lack of notice was justified because the rule was promulgated in response to an emergency:

Federal Defendants provide no argument on this justification. PA failed to demonstrate how delayed implementation would cause real harm to life, property, or public safety. EPA failed to describe the crisis of “confidence” it sought to address. EPA failed to show a need for urgent implementation when it took more than two-and- one-half years to finalize this regulation. (My emphasis.)

Judge Morris initially simply delayed the effective date of the rule for 30 days following promulgation.  However, in response to a motion by the current EPA that the Court vacate the rule, because EPA had no authority to issue it pursuant to its housekeeping authority, Judge Morris agreed and vacated the rule.

And thus the movement to end the use of “secret science” ends, not with a bang, but with a whimper.

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