10/26/2022 - Biden Administration Status Update

Accounting for Health and Environmental Impacts in Agency Decision-making

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The Secret Science Rule and the Clean Air Act Cost-Benefit Rule

By Hannah Perls

A federal court struck down the secret science rule. EPA issued an interim final rule rescinding the cost-benefit rule.

In Executive Order 13990, President Biden directed EPA to review two Trump-era rules “as soon as possible”: the so-called secret science rule[1] and the Clean Air Act cost-benefit rule.[2] Both of these rules, finalized in the final month of the Trump administration, severely constrained the scope of EPA’s rulemaking authority and thus posed a significant barrier to Biden’s ambitious climate agenda. However, a federal court vacated the secret science rule in February 2021, and EPA rescinded the cost-benefit rule in May 2021.

With the secret science rule, the Trump administration sought to permanently constrain EPA’s ability to rely on the best available public health research to set pollution standards by requiring EPA to assign less weight to scientific studies if the data underlying those studies were not publicly available. On January 27, 2021, the District Court for the District of Montana delayed the rule’s effective date, finding that the rule substantively constrained EPA’s discretion in considering scientific research, and thus was not exempt from the Administrative Procedure Act’s notice and comment requirements. The Biden administration asked the court to vacate the rule as improperly issued under the Federal Housekeeping Statute, and the court granted the motion on February 1, 2021, vacating and remanding the rule to EPA.

The Clean Air Act cost-benefit rule limited EPA’s ability to consider the co-benefits of pollution-control rules, while imposing extra administrative burdens for all “significant” rules issued under the Clean Air Act. Thus, the rule would have applied to many of EPA’s major climate and public health priorities, including regulating greenhouse gases and other emissions from the power sector. On May 14, 2021, EPA issued an interim final rule rescinding the cost-benefit rule, effective June 14, 2021.[3] Because both the rule and the rescission rule are procedural in nature, they are not subject to the Administrative Procedure Act’s notice-and-comment requirement. However, EPA offered a public comment period after issuing the interim final rule, to be followed by issuance of a final rule. EPA plans to issue a final rule soon

For more on the secret science rule, read The Downfall of the “Secret Science” Rule, and What It Means for Biden’s Environmental Agenda.

For more on the cost-benefit rule, read New Cost-Benefit Rule Hampers EPA’s Ability to Regulate Harmful Air Pollutants.

[1] Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information,” 86 Fed. Reg. 469 (Jan. 6, 2021).

[2] Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process,” 85 Fed. Reg. 84,130 (Dec. 23, 2020).

[3] Rescinding the Rule on Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process, 86 Fed. Reg. 26,406 (May 14, 2021) (codified at 40 C.F.R. § 83).

National Environmental Policy Act Rules and Guidance

By Abby Husselbee

The Council on Environmental Quality finalized a Phase 1 rule undoing some of the Trump administration’s changes to the National Environmental Policy Act’s implementing regulations; a Phase 2 proposal with more sweeping changes is expected later in 2022.

The National Environmental Policy Act (NEPA) requires federal agencies to conduct reviews assessing the environmental impact of all “major federal actions.” Prior to the Trump administration, the same NEPA implementing regulations had been in place since 1978. In 2020 the Trump administration issued new implementing regulations that excluded certain types of projects from NEPA review and limited the consideration of greenhouse gases.[1]

President Biden identified the Trump administration’s implementing regulations as a priority for his administration to review. In April 2022, Council on Environmental Quality (CEQ) finalized a Phase 1 rule, which restores key provisions of the 1978 rule, including the consideration of indirect effects and cumulative impacts. CEQ announced that it is working to make more comprehensive changes in a Phase 2 proposal which is expected later this fall.

President Biden’s Executive Order 13990 instructed CEQ to rescind its 2019 Draft NEPA greenhouse gas Guidance Document. In contrast with its 2016 guidance, the 2019 guidance did not require agencies to conduct a cumulative impact analysis and only required agencies to account for indirect emissions where “those emissions [were] substantial enough to warrant quantification, and when it [was] practicable to quantify them using available data and greenhouse gas quantification tools.” In February 2021, CEQ instructed agencies to use the 2016 guidance while it works to “review, revise, and update its 2016 GHG Guidance” in accordance with the executive order.

In November 2021, Congress codified some Trump-era NEPA practices into law as part of the Infrastructure Investment and Jobs Act. The changes include conducting simplified reviews for some infrastructure projects (“FAST-41”), a shorter permitting process for hardrock mines, and expanded exemptions (“categorical exclusions”) for certain projects. While these changes may help accelerate the permitting and development of renewable infrastructure, they also apply to many fossil fuel projects. Current FAST-41 implementation guidance also does not mention compliance with civil rights laws, including Title VI of the Civil Rights Act of 1964.[2] Now that these changes are codified, agencies must comply with these provisions. However, as noted above, CEQ intends to revise other parts of the 2020 rule in its Phase 2 proposal later this year. For more, see our Regulatory Tracker page on NEPA Environmental Review Requirements.

[1] The Trump administration also changed CEQ’s procedures for releasing guidance documents. See 86 Fed. Reg. 1,279 (January 8, 2021). The Biden administration issued a final rule rescinding these procedures. Guidance Document Procedures Rescission, 86 Fed. Reg. 19,149 (Apr. 13, 2021)(codified at 40 C.F.R. § 1519).

[2] Exec. Office of the President, Guidance to Federal Agencies Regarding the Environmental Review and Authorization Process for Infrastructure Projects (Jan. 13, 2017), https://www.permits.performance.gov/sites/permits.dot.gov/files/2019-10/Official%20Signed%20FAST-41%20Guidance%20M-17-14%202017-01-13.pdf [https://perma.cc/8QG5-CUFH].