Non-GHG Emission Standards with GHG Co-Benefits
“Secret Science Rule”
The Federal Housekeeping Statute authorizes the “head of an Executive department or military department [to] prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property.” EPA asserted authority under that section to regulate its use of scientific information, including how it “will handle [scientific] studies when data and models underlying [them] are or are not publicly available in a manner sufficient for independent validation and analysis.”
On January 6, 2021, EPA finalized a rule to limit the use of scientific studies for which underlying data is not publicly available. 86 Fed. Reg. 469 (Jan. 6, 2021). The final rule applies to scientific data that the agency uses in crafting regulations as well as all "influential scientific information" at the agency, a broad term that could apply to informal guidance or other agency actions. (See New York v. EPA in “Litigation” below.)
- Final Rule, 86 Fed. Reg. 469 (Jan. 6, 2021)
- Supplemental Proposed Rule, 85 Fed. Reg. 15,396 (March 18, 2020)
- Proposed Rule, 83 Fed. Reg. 18,768 (Apr. 30, 2018)
Litigation
Challenge to 2021 Rule - New York v. EPA
On January 19, 2021, a coalition of states challenged the rule in the District Court for the Southern District of New York. A parallel challenge was filed in the District Court for the District of Montana, which on February 1, 2024 vacated the rule at the request of the EPA under the Biden administration.
Biden Administration (2021-2024)
On January 6, 2021, EPA finalized a rule to limit the use of scientific studies for which underlying data is not publicly available. 86 Fed. Reg. 469 (Jan. 6, 2021). The final rule applies to scientific data that the agency uses in crafting regulations as well as all "influential scientific information" at the agency, a broad term that could apply to informal guidance or other agency actions. (See New York v. EPA in “Litigation” below.)
- Final Rule, 86 Fed. Reg. 469 (Jan. 6, 2021)
- Supplemental Proposed Rule, 85 Fed. Reg. 15,396 (March 18, 2020)
- Proposed Rule, 83 Fed. Reg. 18,768 (Apr. 30, 2018)
First Trump Administration (2017–2020)
On March 18, 2020, EPA issued a supplemental notice of proposed rulemaking in which it outlined clarifications, modifications, and additions to certain provisions in its 2018 proposed rule on “Strengthening Transparency in Regulatory Science.” 85 Fed. Reg. 15,396 (Mar. 18, 2020). Among other things, EPA proposed to significantly expand the scope of the proposed rule, such that it would apply not only to the science relied upon by EPA in promulgating significant regulatory decisions, but also in finalizing influential scientific information and would apply to all data and models underlying such science.
On April 30, 2018, EPA published a proposed rule titled “Strengthening Transparency in REgulatory Science.” 83 Fed. Reg. 18,768 (Apr. 30, 2018). If finalized, the rule would require EPA, when promulgating significant regulatory decisions, to only rely on scientific information for which the underlying data had been made publicly available. This could have significantly restricted the scientific research EPA was able to consider, especially in the public health field, as the data underlying public health studies is often confidential participant information that cannot be made available to the general public.
Litigation
Challenge to 2021 Rule - New York v. EPA
On January 19, 2021, a coalition of states challenged the rule in the District Court for the Southern District of New York. A parallel challenge was filed in the District Court for the District of Montana, which on February 1, 2024 vacated the rule at the request of the EPA under the Biden administration.