Whether by Guidance or Rule, Fundamental Changes Continue at EPA

Through a combination of memoranda and a recently proposed rulemaking, EPA Administrator Scott Pruitt is moving to affect longstanding and fundamental components of EPA programs. The merits (or lack thereof) may be lost as the actions are viewed from a perspective that the Agency is becoming increasingly politicized.

Through the use of a series of guidance memoranda recently released, EPA is revamping its rules for regulating air pollution. (The Hill, April 18, 2018). We reported on two of the memos in the blog on February 6. Those relate to the change in New Source Review policy whereby EPA will no longer second guess company calculations of expected pollution output, and the elimination of the policy known as "Once In, Always In", which required that a source would always be classified as a major source of emissions even if it subsequently reduced emissions below major source thresholds. Now two additional policies have been issued, one which allows companies to use emissions calculations which might be considered more industry friendly when determining whether a particular project would reduce emissions, and the second which was issued by the President, asking EPA to use more industry-friendly practices in enforcing the National Ambient Air Quality Standards program. Arguably, these changes constitute primarily a practical reassessment of guidance reflecting the fact that the air law and regulations have, over the years, encouraged industries to reduce their emissions and that the changes effectively give industry credit for those reductions. As noted in The Hill article, while some of the policies are being challenged by environmental groups, there appears to be little factual basis to argue that the changes are likely to result in any significant increase in emissions. Moreover, the legal procedural challenge urging that these changes should be made through rulemaking appears to be contrary to precedent. The Supreme Court has previously held that federal agencies can repeal policy memos such as these through the use of such replacement memos, and are not required to undergo rulemaking.

On the other hand, EPA, through the Administrator, has proposed to change its use of scientific information through a formal rulemaking. On April 24, 2018, the Administrator announced a new rule that would require that any data used by EPA to set regulatory requirements must be publicly available. (Forbes). This rule, offered in the name of transparency, has crystalized a long-running effort to change the criteria determining what scientific information EPA will be allowed to use as a basis for its rulemaking. The basic difference of opinion between some in the regulated community and those in the scientific and regulatory communities is caught up in the concept of transparency. On the one hand, there is an attractiveness to the idea that information which forms the basis of rules should be made available and, to at least some extent, verifiable. (EPA News Release). The Administrator explained that transparency is his basic concern during testimony to Congress given April 22 (The Hill: Pruitt Explains Scientific Transparency Plan) and the position is supported by certain industry groups, including the U. S. Chamber of Commerce. It also had some significant support in Congress. (The Atlantic, In the Name of Honesty) A bill to impose similar requirements passed the House but has, so far, failed to receive passage in the Senate. And thus, EPA is moving to implement the idea by rulemaking.

There are problems, however, with this approach. Though facially an attractive concept, the idea of transparency where all data is made available is problematic for several reasons. (See, for example: Science Magazine, and Los Angeles Times). It is fair to say that full disclosure of information developed by at least certain scientists might not be possible due to certain proprietary information, or privacy concerns on the part of participants in a particular study, or the fact that some situations are not actually reproducible such as the concerns about lead exposure in Flint or the environmental disasters at Bhopal or the Deepwater Horizon. Indeed, it appears that the proposed rule carries with it some exceptions designed specifically for studies supported by industry to allow some of the proprietary data from those studies to remain confidential and thus arguably not fully transparent.

Regardless, the Administration clearly believes that a rule is appropriate, if not necessary, in this situation in order to make it more difficult to undo this new approach to scientific information. Moreover, the rule is on a 30 day fast track further indicating the significance the Administrator places in having the rule in place as quickly as possible.

Posted in: Air Pollution, EPA
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