Advocacy Groups Take Aim at New Rule Limiting the EPA’s Consideration of Scientific Studies

The Environmental Defense Fund, Montana Environmental Information Center, and Citizens for Clean Energy, Inc. have filed a lawsuit against the Environmental Protection Agency (EPA) and its administrator for enacting a rule that the agency allegedly did not have the authority to make. Monday’s Administrative Procedure Act (APA) complaint, filed in the District of Montana, claims that the EPA’s “sweeping” new rule published and made effective on Jan. 6, will “cripple” the agency’s ability to protect public health and the environment by limiting which scientific evidence it can consider.

The complaint explains that the rule will profoundly transform the ways in which the agency may consider scientific evidence by prohibiting it from relying on research for which the underlying data is not publicly available. The filing further explains that because “legal and ethical rules prevent making data involving human subjects available to the public—or available through ‘restricted access’—the rule hinders consideration of exactly the sorts of epidemiological and other studies that are most critical to the development of public-health standards.”

The plaintiffs described how the rule was passed, despite the opposition of the EPA’s own scientists, in the waning days of the Trump Administration. They contend that the agency did not have the authority it claimed to under the Federal Housekeeping Statute (FHS) to enact the changes in the first place. Invoking the FHS, the organizations argue, depends on two assumptions, neither of which are correct.

First, the plaintiffs allege that “[a]lthough the EPA is not one of the Executive departments listed in that statute, it contends that such authority was later extended to it.” Moreover, they claim, the rule is not procedural but substantive, illustrated by its intent to and effect of constraining the agency’s discretion. Because the FHS only permits the creation of procedural laws, the EPA overstepped its authority, the plaintiffs conclude.

In addition, the environmental groups take issue with the rule’s immediate effective date. They argue that substantive laws may not take effect until 30 days after their publication, unless they meet the APA’s “good cause” exception. “In concluding that the rule is exempt from this requirement, the EPA repeats its error of treating its sweeping and transformational rule as just ‘procedural’ rather than substantive,” the plaintiffs maintain.

Like other cases challenging eleventh hour Trump Administration rules as violative of the APA, albeit in dramatically different contexts, the plaintiffs claim that the EPA has failed to demonstrate the existence of good cause exempting its new rule from the normal waiting period. In turn, the plaintiffs ask the court to delay the new rule’s effective date and, ultimately, to set it aside entirely.

The plaintiffs are represented by Gupta Wessler PLLC, Kaplan Kirsch & Rockwell LLPDonahue, Goldberg, Weaver, & Littleton, and counsel from the Montana Environmental Information Center and the Environmental Defense Fund.