OVERNIGHT ENERGY: Court rules against fast-track of Trump EPA’s ‘secret science’ rule | Bureau of Land Management exodus: Agency lost 87 percent of staff in Trump HQ relocation | GM commits to electric light duty fleet by 2035

by Rachel Frazin - 01/28/21 5:56 PM ET

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ALL SUBSTANCE AND NO FLASH: A federal judge in Montana late Wednesday ruled against the former Trump administration’s attempt to fast track a controversial rule about how the Environmental Protection Agency (EPA) considers scientific evidence, endangering its future under the Biden administration.

The Trump EPA had characterized the rule, which would restrict the use of studies that don’t make their underlying data publicly available, as procedural, allowing it to go into effect immediately.

Judge Brian Morris, an Obama appointee, disagreed, determining that the rule was substantive and ordering that it can’t go into effect until Feb. 5.

Delaying the rule could jeopardize it, as it would now be subject to a new Biden White House memo that freezes pending regulations for 60 days.

Under the memo, President Biden’s administration can take action against rules if it determines that they raise “substantial questions of fact, law, or policy.”

The Trump administration billed the rule in question as a transparency measure, with former EPA Administrator Scott Pruitt saying it would combat “secret science.”

Critics argue that it could undermine the use of important public health studies that have legitimate reasons, such as privacy, to hide underlying data.

The rule doesn’t eliminate the use of studies with private data, but gave preference to those that made their data public, which critics argued could tip the scales in favor of industry.

In his ruling, Morris argued that that rule was substantive, rather than procedural as the agency contended, because it “determines outcomes rather than process.”

“The Final Rule’s status becomes particularly clear when one examines what it is missing—any kind of procedure. EPA itself noted in its rulemaking that it would have to issue future guidance on how the rule operates procedurally,” he wrote.

He added that the agency lacked “good cause” to exempt the rule from the 30-day delay before it takes effect.

“EPA failed to show a need for urgent implementation when it took more than two-and one-half years to finalize this regulation,” Morris wrote.

The ruling also raises questions about the Congressional Review Act (CRA), under which Congress can overturn agency rules issued at the end of a president’s term.

Then-EPA Administrator Andrew Wheeler told reporters earlier this month that the CRA was not applicable because “this is an internal housekeeping regulation” and is not costly.

Deepak Gupta, one of the lawyers on the case, told The Hill that he thinks the court’s decision that the rule is substantive, rather than just a housekeeping matter, means there’s a better chance the CRA could be used against it.

“Yesterday’s decision makes it much more likely that Congress may repeal this rule under the Congressional Review Act. The decision also makes it much easier for the EPA to postpone this rule and ultimately rescind it,” Gupta said.