Busy Final Weeks For Trump’s EPA and Department of Interior

The current leadership of the U.S. Environmental Protection Agency (“EPA”) used the remaining time in Trump administration to alter the criteria for evaluating scientific studies used to enact public health policy, change the methodology for conducting oil and gas tank inspections, and finalize more rollbacks of environmental protections. The changes made during these last weeks are mostly formal finalizations of rule changes presented earlier during the administration’s tenure. Many of these changes are likely to be challenged by the incoming Biden administration, the large numbers of changes to environmental policy made in recent years mean there may be delays and/or complications involved in restoring policy to where it was before Trump took office.

EPA Finalizes Scientific Studies Data “Transparency” Rule

The EPA also finalized a plan it says will improve the “credibility” of science by increasing scrutiny of the types of scientific studies used to create public policy. The Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information Rule, as it is known, says only those scientific studies that make all of their underlying data and models public can be considered in crafting public policy. These “pivotal” studies are to be deemed more important than the studies with confidential data. The EPA claims independent verification of research is crucial and that this evaluation cannot be properly completed without all of the data being made public. Though earlier versions of this rule applied to a range of scientific studies, this finalized version only sets requirements for “dose-response” studies. “Dose-response” studies measure the degree to which an increase of exposure to a chemical or other pollutant increases the risk of harm to human health.

Many scientists say insisting upon public data is arbitrary and problematic, and that EPA’s new rule is in fact designed to stop and/or delay new public health protections. Many crucial scientific studies feature private subject data (e.g., histories, lifestyle information, and other personal data) because subjects would not participate otherwise. Moreover, studies with private data have influenced the most important clean air and water regulations enacted by the EPA. An additional, “arbitrary” layer of scrutiny stands to disqualify some of the best available science and ultimately weaken the government’s ability to protect the public’s health.

What is clear is that this transparency rule would make regulations more difficult to finalize. Environmental activists say this rule is the natural culmination of a long-standing strategy to undermine science; the tobacco industry used a similar approach to evaluating scientific studies in the 1990s and thereby discouraged the scientific study of smoking health risks. Had this transparency rule been in effect at the time, regulation of mercury releases from power plants and polluted drinking water would not have been possible because there would be no acceptable research to demonstrate human health risks of both. The expectation that this rule will be used in a means of discouraging regulation is demonstrated by the Trump administration’s use of earlier iterations of this rule to reject an agency declaration that the pesticide chlorpyrifos causes serious health problems.

Environmental groups also worry human health will be jeopardized by this study. They point to a study that stands to be designated as “non-pivotal” under the rule change: a survey of research that describes how coronaviruses behave on surfaces with chemical agents. The EPA recommendations made for disinfectants to use against SARS-CoV-2 were based upon a survey of other studies. Those studies described how coronaviruses behave on surfaces with chemical agency, and though some of the individual studies may have included public data, the survey itself did not. The raw data from the individual studies was not included in the survey, and this would render the science “non-pivotal” under the new rule.

The reasoning behind the increased scrutiny is ostensibly premised upon the notion that policies might have been enacted based upon data that wasn’t public and therefore—somehow—not as accurate. The administration has neglected to provide examples of suspect policies enacted with the use of anonymous data. However, proponents of this change believe it will ensure the EPA is rigorous in its decision-making. EPA says the regulation will only be applied to future rules; however, public health experts worry that once certain long-used studies might be rendered inadmissible when regulations now in effect come up for renewal.

President-Elect Biden has not commented publicly on this rule change, but activists believe he will suspend and repeal it once he is in office. Before this happens, it is possible the temporary instatement of the rule can muck up the works for Biden’s new EPA Administrator, Michael Regan. The rule allows the Administrator to exempt studies from the rule when he/she sees fit, stating that there are relevant older studies from which the data is no longer available or else not easily accessed.

Changes To Methodology of Large Oil & Gas Tank Inspections

EPA announced the finalization of its rule change governing inspections of large oil and gas liquid storage tanks. Trump EPA Administrator Andrew Wheeler called this change to a “proven, modern inspection method” an example of the administration “delivering on its promise to cut unnecessary regulatory costs” while still “retaining important emissions reductions.” The administration says the new inspection methodology can find and correct air pollution leaks without necessitating the emptying of the storage tanks, and this change will lower industry costs at the same time as reducing emissions.

Owners and operators of large fuel tanks (also known as volatile organic liquid storage vessels) will now be able to conduct tank inspections without first emptying or degassing the containers. This change is of particular interest in the wake of the COVID-19 pandemic related shutdowns because the global oil surplus has placed a premium on storage space. The agency says the new inspection methodology involves less venting and flaring than the old process, which means a reduction in Volatile Organic Compound (“VOC”) emissions. However, the change comes in response to complaints from tank owners and operators, who say regulations governing the inspection process (known as the New Source Performance Standards) are burdensome and time-consuming for them, particularly in the context of oil surpluses. The original announcement of changes was made in October and met with praise from industry groups. The final changes should affect approximately 3,500 fossil fuel manufacturing facilities and bulk stations across the country.

Migratory Bird Protections Removed

Trump’s Department of Interior was also busy during the last weeks of the administration, finding the time to remove protections for migratory birds killed by oil spills and toxic waste dump sites. The fossil fuel industry has long lobbied for immunity from legal liability for the accidental deaths of birds from these sources.

In the case of the migratory bird rule, the delay is thought to be intentional. The oil industry has long hoped to be blocked from liability for killing these birds. As it stands now, the federal government will not fine or prosecute companies for killing birds as long as they did not set out to kill the birds explicitly. This applies to accidents (oil spills, electrocution on power lines) and also intentional, illegal acts (use of a banned pesticide), so long as the birds were not the intended target of the poison. Industry leaders say they will continue to voluntarily protect bird habitats and that removing this threat of punishment will lessen the amount of legal disputes resulting from accidental bird deaths. Environmentalists call the decision “cruel,” and say the decision will have a disastrous effect on already shrinking migratory bird populations.

These changes are likely to be the last major environmental rollbacks performed by the Trump administration. They will pose immediate challenges for the Biden administration, which has already promised to suspend and reverse many of the rules enacted by the Trump administration. The administration has referred to these last-minute “midnight regulations” as part of an “unrelenting assault” on the environment. Rebuilding all of these regulations, as well as the agencies that enact them, will be a formidable task for the incoming administration. Though it is likely many or most of the policies will be reversed, it is not clear how long the process will take.

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