Federal Court Freezes Trump Administration's "Secret Science" Rule
A federal court in Montana stopped the Trump Administration’s controversial “Secret Science” rule that would have restricted the types of information the Environmental Protection Agency can use when making new regulations.
The rule would have limited the agency’s use of research that cannot be reproduced and data that is not publicly available. Under the rule, researchers would have to disclose the raw data involved in public health studies, including “dose-response studies,” which assess how a person’s risk of injury changes based on exposure levels. These types of studies have often been used to support regulations targeting the nation’s air and water.
Although the rule was noted early on as a priority for the Trump Administration, it was not published until Jan. 6 and was met with litigation from environmental groups. On Jan. 27, the U.S. District Court for the District of Montana sided with these groups, concluding that the agency violated the Administrative Procedure Act by making the rule effective immediately instead of providing the necessary 30-day notice. The court delayed the rule’s implementation until Feb. 5 to let the Biden Administration assess whether to go forward.
On Jan. 31, the EPA, now under Acting Administrator Jane Nishida, filed a request with the court to vacate the rule and remand it to the agency. The court granted the request on Feb. 1, effectively ensuring that the rule will not be finalized.
Had the rule taken effect, it promised potentially major changes. Although the Biden Administration would likely have tried to rescind the rule through normal procedure, this process could have been lengthy. And in the meantime, it could have hampered the EPA from issuing new or revised regulations meant to address chemicals, water discharges and air emissions. As it stands now, the rule’s elimination keeps the status quo in how the agency creates new regulations and opens the door to more regulation of industries like chemical manufacturers and energy producers.
The rule’s late publication by the Trump Administration and remand and likely rescission under President Biden is another example of the now-familiar regulatory whiplash felt by industry and other stakeholders during the change of administrations. In its first two weeks, the Biden Administration executed multiple executive actions, rolling back Trump-era orders and aggressively tackling issues related to climate change. As environmental regulation increasingly becomes the domain of executive action and as the contrast between the parties’ regulatory and deregulatory priorities grows more stark, it is all the more important to strategize with the long term in mind.
Please contact David J. Topping or any other member of Phelps’ Environmental Law team if you have questions or need compliance advice and guidance.
