HAPPY MONDAY! Welcome to Overnight Energy, The Hill’s roundup of the latest energy and environment news. Please send tips and comments to Rebecca Beitsch at [email protected] Follow her on Twitter: @rebeccabeitsch. Reach Rachel Frazin at [email protected] or follow her on Twitter: @RachelFrazin.
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CAN’T KEEP A SECRET (SCIENCE RULE): A federal court has vacated the Trump administration’s “secret science” Environmental Protection Agency (EPA) rule, which critics had said would undermine the use of public health studies in agency rulemaking.
The decision comes after the Biden administration asked the court to throw out the rule restricting the EPA’s use of studies that don’t make their underlying data publicly available.
In his order vacating the rule and remanding it to the EPA, Montana federal District Judge Brian Morris noted that the agency argued that a prior court ruling eliminated the rule’s legal basis.
“Defendants explain that in light of the Court’s conclusion that the Final Rule constitutes a substantive rule, the Environmental Protection Agency lacked authorization to promulgate the rule pursuant to its housekeeping authority, which is the only source of authority identified in the Final Rule,” said the order from Morris, an Obama appointee.
The Trump EPA classified the rule as procedural, rather than substantive, which allowed it to become effective immediately under the agency’s housekeeping authority rather than having to wait for the standard 30 days after Federal Register publication.
Morris, in a decision last week, ruled against this, determining that the rule was substantive, not procedural, terminating the agency’s fast-track of it.
“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 at the time.
That decision delayed it from going into effect, making it subject to a Biden administration freeze and review on Trump-era rules that were not yet effective.
Prior to the court decision on Monday, the rule appeared to be under White House review.
Trump administration officials had billed it as a transparency measure and a way to combat “secret science.” Opponents warned that it could hamstring the use of major health studies that keep their data under wraps for legitimate reasons including privacy.
The rule didn’t eliminate the use of all studies with private data but gave preference to those with public data.
An EPA spokesperson said in an email that the agency was “pleased” with the decision to vacate the rule.
“EPA is committed to making evidence-based decisions and developing policies and programs that are guided by the best science,” the spokesperson said.
Read more on the case here.
The court isn’t the only one that didn’t like the rule…
Earlier today, the EPA had asked the court to throw it out.
PROS AND CONS: A series of orders by President Biden reimagining the regulatory process has thrilled progressives by stressing the need to craft policy that focuses on dignity, safety and equity as much as technical analysis.
The orders, signed the first day of the administration, have gotten less attention than those rejoining the Paris Climate Accord or ending the so-called Muslim ban, but could have a major impact, signaling an administration that plans to roll out more sweeping rules than its predecessors.
But the orders have also prompted concerns by some who fear the administration will move away from the lengthy, detailed analysis spurred during the Reagan days and used ever since.
In the memo, Biden calls on the Office of Management and Budget to “provide concrete suggestions on how the regulatory review process can promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.”
Video: Biden signs sweeping executive actions to combat climate crisis (ABC News)
The memo was joined by an order striking down every regulatory-related effort from former President Trump, including his directive to kill two regulations for every new one enacted.
“The Trump Administration said, ‘We don’t care about benefits, we only care about costs,’ ” said Stuart Shapiro, a regulatory expert and professor at Rutgers University.
“In getting rid of that, the first thing the Biden administration has done is reassert what had been the norm prior to Trump, which is ‘We are going to care about benefits and costs when we issue regulation.’ “
The regulatory process often spans years as agencies take comment, produce the cost-benefit analysis that serves as a lengthy pro/con list evaluating the rule, and then take feedback from Office of Information and Regulatory Affairs (OIRA), a last-stop review board within the White House that must clear all rules.
“I think the point of that memo is to seriously reconsider the role of OIRA in the regulatory review process and then the role cost-benefit analysis plays in OIRA’s regulatory process,” said Amit Narang, a regulatory policy advocate with Public Citizen, a left-leaning group.
OIRA has often been viewed as a roadblock by those who want to see the government enact more robust regulation.
Biden’s memo implies he wants a softer OIRA that “can play a more proactive role in partnering with agencies” and “affirmatively promote[s] regulations that advance” the values he listed.
That list calls out to a number of policy areas, ranging from environment and climate change to immigration and consumer protections – all areas that Lisa Heinzerling, a law professor at Georgetown University, says are on a “collision course” with cost-benefit analysis.
“When under Reagan systematic cost-benefit analysis took off, the motive was to create a fig leaf for deregulation. ‘Look we have this analysis that shows it’s good to deregulate and bad to regulate. We’re not making any value adjustments; it’s all science-based. Move along,’ ” she said.
“This is a beautiful tool if you want to make regulation look bad and have no one know how it happened.”
Read more on cost-benefit analysis here.
IN CAHOOTS? The CEOs of Exxon Mobil and Chevron discussed merging the country’s two largest oil companies last year, The Wall Street Journal reported Sunday.
The talks reportedly came after the start of the coronavirus pandemic, which caused oil prices to sink, particularly last April.
According to the Journal, the discussions were preliminary but could start up again.
Exxon Mobil spokesperson Casey Norton declined to comment on the report. A spokesperson for Chevron did not immediately respond to The Hill’s request for comment.
Chevron CEO Mike Wirth told the Journal last week that mergers in general could increase efficiency in the industry.
“As for larger-scale things, it’s happened before,” Wirth said, referencing mergers in the 1990s and 2000s. “Time will tell.”
Read more on that here.
MARK YOUR CALENDAR: The Senate Energy and Natural Resources Committee will vote Wednesday on whether to advance the nomination of Jennifer Granholm, who President Biden has selected as Energy secretary, to the full senate, it was announced Monday.
ON TAP TOMORROW::
- Agriculture Secretary nominee Tom Vilsack will have a confirmation hearing at the Senate Agriculture, Nutrition and Forestry Committee
WHAT WE’RE READING:
Dutch court orders Shell Nigeria to compensate farmers, The Associated Press reports
Fight for Oak Flat: Mining company one step closer to building copper mine on sacred land, ABC15 Arizona reports
Forecast: Oil and gas companies will pay negative Alaska corporate income taxes, The Anchorage Daily News reports
ICYMI…Stories from Monday and the weekend
Biden asks Supreme Court to cancel arguments on border wall, asylum cases
EPA asks court to toss ‘secret science’ rule
Exxon, Chevron discussed merger last year: report
Biden signals major shift on regulations with first-day orders