Enlarge /. BARATARIA BAY, Lousiana – JULY 14: A young seagull rests on a tree that was used to contain the oil spill on July 14, 2010. Should this bird be killed by the oil in the future, no one could be held responsible for it.
In the days leading up to President-elect Joe Biden's inauguration, the Trump administration has taken a number of measures that will make it difficult for its officials to reverse its policies or pursue new ones. This is especially true in the area of environmental regulations, where both the Environmental Protection Agency and the Home Office have recently made decisions.
In the past few days, Interior has enacted new rules allowing the industry to kill migratory birds with impunity, and the department has pushed plans to lease portions of the Arctic National Wildlife Refuge for drilling tomorrow. In the meantime, the EPA has finally enforced a new rule that could seriously limit the agency's ability to set future rules. The only small consolation is that the EPA's Final Rule is less dire than some previous drafts.
Just the science we like
The EPA's new rule, which will be officially released tomorrow, is an attempt to set additional standards for the evidence it will take into account when setting new rules for pollutants. In principle, the rule sounds great: it wants the data behind the scientific work used to be made publicly available before it can be used to support regulatory decisions. In reality, the rule is problematic as many of these studies are based on patient records that must be kept confidential. In other cases, the companies with the best information about some environmental hazards are the companies who make or work with them, and they may not be interested in sharing proprietary data.
The practical result of this type of change is that the EPA will not have access to scientific work that contains the clearest indications of public harm. This would almost certainly result in weaker rules or a decision not to regulate at all.
The attempt to handcuff the EPA has a long history, with attempts by Congress to enshrine it in law dating back to the early Trump administration and drafts of the current rule that has been in the EPA for years Are in circulation. The New York Times has even traced the idea back to the tobacco industry's struggle against second-hand smoking regulations.
The federal regulatory process requires agencies to include public feedback on draft versions in order to be included in the final rule, and that was the case here. As a result, the new regime is far less harmful to EPAs. The final version states: "This rule has a much narrower scope than the rule proposed for 2018." The original rule applied both to models of public exposure and to the publication of dose-response studies of their health effects. The final version only applies to the dose-response studies. The EPA is no longer required to conduct its own review of published peer-reviewed studies, and the EPO administrator can now allow exceptions that allow the use of studies where the data is not publicly available.
Legacy rules are now explicitly capitalized, although the new rule would apply if the risks were reassessed. A large number of definitions that were too extensive were also tightened and made more precise in the final version. All of these changes were proposed during the public feedback phase of the regulatory process.
Despite the changes, the final rule means that the EPO administrator, a policy officer, may need to be involved in determining what science the agency can consider when setting regulations. Regulations will still be possible, but will be more difficult to follow and likely to be less stringent. Nonetheless, the EPA contends that it is doing all of this because it promotes public access to data: "The EPA disagrees with the claim that this rule is politically motivated because transparency does not and this rule does not require political ideology protection of human health or the environment should lead to a reduction, as the benefits of greater data transparency and the importance of re-analysis and validation of study results are well documented in the scientific literature. "
Interior is not for birds
The EPA wasn't the only one trying to undercut existing environmental regulations. On Tuesday, the Interior Ministry released a new ordinance amending the enforcement of the Law on the Treaty on Migratory Birds. This law prohibits the killing of the migratory birds that are the subject of the law, and it has been one of the methods the government has used to penalize companies for causing widespread environmental damage that has resulted in bird death. Basically, the new rule says that oil spills are fine as they were not done with the intent of killing birds.
Home Secretary David Bernhardt said, "This rule merely reaffirms the original meaning and intent of the Migratory Bird Treaty Act by making it clear that the US Fish and Wildlife Service will not prosecute landowners, industries and others for the accidental killing of a migratory bird becomes . "
Industry may still be exposed to legal threats under the Endangered Species Act and other environmental regulations. However, the rule change means that it will otherwise be able to kill birds with impunity as there is no industrial activity specifically aimed at killing birds.
The move comes the day before the Home Office's planned drilling rights auction at the Arctic National Wildlife Refuge, potentially ending a decades-long battle between environmentalists and oil companies. A lawsuit to lock the auction is pending in Alaska, but it is unclear if action will be taken before Wednesday.
Normal and less
Efforts to enforce political priorities before a new administration takes office have been the order of the day in recent years. Usually these follow a common course: The new rule leads to lawsuits that prevent them from taking effect. The new government tells the court that it is withdrawing the rule, but must then take the time to go through the full formal settlement process to reverse it. Including the time to formulate a new rule, move it through the public commenting phase, and create the final rule, it can mean that many of the last-minute changes won't be rolled back until midway through the new administration's first term.
Such is the likely fate of the amendments to the Law on the Treaty on Migratory Birds. However, since the drilling leases directly affect sales to commercial companies, it is likely to be far more difficult to roll back once they are issued. And the changes to the EPA appear to be part of a concerted effort to make all future environmental legislation more difficult to implement.
Earlier this year, the EPA enacted new regulations that included a finding that epidemiological evidence alone is not enough to justify future regulations. Like the new scientific evidence rule, this appears to be designed to discourage the use of most of the scientific evidence underlying environmental legislation. In epidemiology, we estimate the average exposure of populations and link this to the health outcomes in those populations. The only realistic alternative is to install monitoring equipment and then compare it to individual health outcomes, a far more expensive and complex form of study.
The EPA has also taken steps to make future regulations more difficult to justify on economic grounds. In April, the Trump EPA announced that it would not consider the indirect benefits of regulations when conducting a cost-benefit analysis. This means that if a regulation avoided $ 1 for cleaning contaminants but saved $ 1 billion in healthcare costs, only cleaning costs could be considered.
Overall, these rules will make it much more difficult to collect evidence to justify regulations on scientific grounds, and make it nearly impossible to justify them on economic grounds. Your presence will make it extremely difficult for the Biden EPA to do anything until reversed.