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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.
HEADQUARTERS HEADCOUNT: After the Trump administration announced its plans to relocate the Bureau of Land Management (BLM) headquarters to Colorado, more than 87 percent of employees decided to leave the agency, according to new numbers released by the Biden administration.
The figures show that following a July 2019 announcement that the Department of the Interior would uproot the majority of BLM employees, just 41 agreed to relocate, while a staggering 287 either retired or left the agency up until December of this year.
The flight of employees came after Trump’s BLM rolled out a plan that would leave just 60 of the agency’s 10,000 employees in Washington, D.C., establishing a new headquarters in Grand Junction, Colo., while spreading the majority of Washington-based staff to various offices across the West.
“The bureau lost a tremendous amount of expertise; those were very seasoned people,” said Steve Ellis, who held the highest-ranking career position at the BLM under the Obama administration. “The numbers confirmed my worst fears. I hope we can get some of them back.”
Critics saw the move as a way to dismantle an agency that at times stands in the way of development on public lands, particularly for the fossil fuel industry.
Democrats frequently questioned why Grand Junction – a town of 60,000 four hours away from any major airport – would be the site of the BLM’s top officers.
The move was first announced by then-Sen. Cory Gardner (R-Colo.) as he prepared for a tough reelection campaign.
But as the Biden administration puts its own stamp on the BLM, it’s not yet clear what it plans to do with the Grand Junction headquarters, where 40 employees currently work, or the rest of the Western-based employees.
“The Interior Department’s new leadership will work with BLM career staff to understand the ramifications of the headquarters move and determine if any adjustments need to be made,” the agency said in a statement. “We are committed to engaging with a number of stakeholders through this process, including Tribes and Members of Congress.”
“BLM’s important mission and the communities served by the agency deserve a deliberate and thoughtful process,” it added.
CAUSE THE POWER YOU’RE SUPPLYING, IT’S ELECTRIFYING! : General Motors on Thursday announced it would shift to production of an all-electric light duty fleet by 2035, part of a broader goal for the company to reach carbon neutrality by 2040.
Under the pledge, all light duty cars, trucks and SUVs would go electric by 2035, with 40 percent of the company’s U.S. models going electric by the end of 2025.
Medium- and heavy-duty vehicles would still use gas under the current plan, but the company plans to look for ways to offset any emissions from those vehicles by 2040.
GM said the plan is part of an effort to join “governments and companies around the globe working to establish a safer, greener and better world.”
GM is investing $27 billion in electric and autonomous vehicles in the next five years – up from the $20 billion planned before the onset of the COVID-19 pandemic. It also plans to operate its factories on 100 percent renewable energy in the U.S. by 2030 and globally by 2035.
DON’T BANK ON IT: The Office of the Comptroller of the Currency (OCC) is shelving a controversial rule meant to prevent banks from rejecting corporate customers based solely on their industry – including the fossil fuel industry.
The OCC announced Thursday that it would wait to publish its “Fair Access” rule in the Federal Register until a full-time comptroller can review it, preventing it from taking effect until President Biden’s eventual nominee assumes office.
The move comes roughly a week after the White House imposed a freeze on all rule making activity that began before Biden took office, though the OCC said the pause was the agency’s decision alone.
Biden has not yet announced his pick for comptroller of the currency, but it is highly unlikely that his eventual nominee would move forward with a rule that has been universally condemned by Democrats.
The OCC on Jan. 14 finalized its Fair Access rule, which was proposed in November to protect oil, natural gas and firearms companies from being spurned by banks. A slew of major banks have backed away from financing oil and gas drilling projects and firearm manufacturers in recent years, citing climate change and several mass shootings.
WHAT WE’RE READING:
Biden Issues Dozens of Oil Drilling Permits in First Few Days, Bloomberg reports
Dow, subsidiaries seek $3M EPA settlement for years of pollution, faulty flaring, The Advocate reports
U.S. oil industry seeks unusual alliance with Farm Belt to fight Biden electric vehicle agenda, Reuters reports
Two Florida panthers dead in first week of 2021, The Orlando Sentinel reports
ICYMI: Stories from Thursday…
Texas governor promises lawsuits over Biden climate regulations
GM commits to electric light duty fleet by 2035
Cheney offers bill to prohibit suspension of oil, gas, coal leases
Regulator shelves rule meant to force banks to serve oil, gun companies
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