Sun. Oct 2nd, 2022
A bird stands on a tube that winds through the water.
enlarge BARATARIA BAY, Louisiana – July 14: A young seagull rests on a tree that was used to contain the oil spill July 14, 2010. In the future, should this bird be killed by the oil, no one can be held responsible.

As the days count down to President-elect Joe Biden’s inauguration, the Trump administration has taken a series of actions that will make it harder for its replacements to reverse any of its policies or pursue a new one. This is especially true in the area of ​​environmental regulation, where both the Environmental Protection Agency and the Department of the Interior have recently made decisions.

In recent days, the Home Office has issued new regulations that will allow industries to kill migratory birds with impunity, and the department has pushed ahead with plans to lease portions of the Arctic National Wildlife Refuge to drill tomorrow. Meanwhile, the EPA has finally passed a new rule that could severely limit the agency’s ability to enact future regulations. The only bit of consolation is that the EPA’s final rule is less horrific than some previous versions.

Only the science we like

The EPA’s new rule, due to be formally published tomorrow, is an effort to establish additional standards for the evidence it considers when setting new regulations for pollutants. Basically, the rule sounds great: It wants the data behind the scientific papers it uses to be made public before it can be used to support regulatory decisions. In reality, the rule is problematic, as many of these studies rely on patient records that must be kept confidential. In other cases, the organizations with the best information about certain environmental hazards are the companies that manufacture or partner with them, and they may not be interested in sharing proprietary data.

The practical result of these changes is that the EPA can no longer rely on scientific papers that contain the clearest evidence of harm to the public. This would almost certainly lead to weaker rules or a decision not to regulate at all.

The attempt to cuff the EPA has a long history, with attempts by Congress to enshrine it in law dating back to the beginning of the Trump administration, and drafts of the current rule circulating within the EPA for years. . The New York Times has even traced the idea back to the tobacco industry’s fight against second-hand smoke regulations.

The federal regulatory process requires agencies to include public feedback on drafts in the final rule, and that was the case here. This makes the new rule significantly less damaging to the EPA. As the final version notes, “This rule has a much narrower scope than the rule proposed in 2018.” The original rule applied to both models of public exposure and dose-response studies to disclose their health effects; the final version only applies to the dose-response studies. It no longer requires the EPA to conduct its own peer review of published peer-reviewed studies and now allows the EPA administrator to allow exceptions that allow the use of studies whose data is not publicly available.

Rules established in the past are now explicitly grandfathered in, although the new rule would apply if a risk reassessment takes place. In the final version, a large number of definitions that were too broad have also been tightened up and made more concrete. All of these changes were proposed at the public feedback stage of the rulemaking process.

Despite the changes, the final rule will mean that the EPA administrator, a political appointee, may need to be involved in determining the science the agency can consider when making regulations. Regulations will still be possible, but they will be more difficult to pursue, and they will likely be less strict. Despite this, the EPA claims it does all this because it promotes public access to data: “The EPA disagrees with the claim that this rule is politically motivated, as transparency does not presuppose a political ideology, and it is unlikely that this rule will result in reduced human health or environmental protection, as the benefits of greater data transparency and the importance of reanalyzing and validating study results are well documented in the scientific literature.”

Interior is not for the birds

The EPA was not alone in trying to undermine existing environmental regulations. On Tuesday, the Department of the Interior released a new regulation that changes how it will enforce the Migratory Bird Treaty Act. This law prohibits the killing of the migratory birds it subjects, and it is one of the ways the government has punished companies for causing widespread environmental damage that has resulted in bird deaths. The new rule essentially says that oil spills are fine because they haven’t been done with the… intention of killing birds.

Secretary of the Interior David Bernhardt said: “This rule simply confirms the original meaning and intent of the Migratory Bird Treaty Act by making it clear that the U.S. Fish and Wildlife Service will not prosecute landowners, industry and other individuals for the accidental killing of a migratory bird.”

The industry may still face legal challenges under the Endangered Species Act and other environmental regulations, but the rule change means it could otherwise kill birds with impunity as no industrial activities are undertaken to explicitly kill birds.

The move comes the day before the Department of the Interior will hold an auction of drilling rights in the Arctic National Wildlife Refuge, potentially ending a battle between environmentalists and oil companies that has been going on for decades. A lawsuit to block the auction is pending in Alaska, but it’s not clear if action will be taken before Wednesday.

Normal, and less

Attempts to push through policy priorities before a new government takes office have become commonplace in recent years. Most of the time, these follow a common course: The new rule leads to lawsuits that prevent it from taking effect. The new government tells the court that it will revoke the rule, but will then have to take the time to go through the full formal rule-making process to undo it. Including the time to formulate a new rule, push it through the public comment period, and make the final rule, this could mean many of the last-minute changes won’t be rolled back until midway through the new government’s first term.

Such is the likely fate of the amendments to the Migratory Bird Treaty Act. But the drilling leases, since they relate directly to sales to commercial enterprises, are likely to be much more difficult to reverse once issued. And the changes at the EPA appear to be part of a concerted effort to make all future environmental regulations more difficult to implement.

Earlier this year, the EPA issued new regulations stating that evidence from epidemiology alone was not sufficient to justify future regulation. Like the new rule on scientific evidence, it seems designed to eliminate the use of most scientific evidence underlying environmental regulation. Epidemiology is how we estimate average exposure for populations and link that to health outcomes in those populations. The only realistic alternative is to install monitoring equipment and then compare it with individual health outcomes, a much more expensive and complex form of research.

The EPA has also taken steps to make it more difficult to justify future regulation on economic grounds. In April, the Trump EPA announced that it would not consider indirect regulatory benefits when conducting a cost-benefit analysis. This means that if a regulation prevented $1 in contamination cleanup but saved $1 billion in health costs, only the cleanup costs could be considered.

All in all, these rules will make it much more difficult to gather evidence to justify regulation on scientific grounds and nearly impossible to justify them on economic grounds. Their presence will make it extremely difficult for the Biden EPA to do anything until they are rolled back.

By akfire1

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