Excerpt
On the 27th of January 2021, the U.S. District Court for the District of Montana ruled that the Censored Science Rule that was issued under President Trump’s administration was unlawful as it did not adhere to the proper procedure; furthering whether the rule had any legal basis, to begin with.
Background of the Case
The Environmental Protection Agency (EPA) was established under President Nixon in 1970 to combat pollutants that debase the air, drinking water, and fertile land. Later administrators of the EPA stated that their role broadly covered responsibility for research, standard-setting, monitoring, and enforcement concerning air and water pollution, solid waste disposal, radiation, and pesticides. At the core of the EPA’s mission is the protection of “human health and the environment”. As part of this mission, the EPA regularly, through scientific research and assistance from Congress propose legislation. Consequently, the EPA is required to set air pollution standards, such as air quality criteria, that must reflect the “latest scientific knowledge”. These criteria must then be adopted as “National Ambient Air Quality Standards” (NAAQS) at levels requisite to protect public health with an adequate margin of safety. Furthermore, the EPA is required to investigate and report on “actual health effects with respect to persons living in the vicinity of sources” and “any available epidemiological or other health studies” regarding hazardous air pollutants.
With these investigations and reporting, the EPA relies on a wide range of scientific research, which includes epidemiological studies that use dose-response data to link exposure to a pollutant, contaminant, etc. Some of these epidemiological studies examine small populations with unique health challenges that include confidential medical and other personally identifiable information. Such information could be used to identify study participants. Federal law, thus, prohibits, such disclosure to protect the privacy of those who participated in those studies. Although these studies undergo peer review by public health professionals, challenges are common against the EPA to disclose the information. In a previous challenge, the D.C. Circuit ruled in favour of the EPA, stating the disclosures were “impractical” and “unnecessary”.
Subsequently, in 2018, the EPA proposed a rule to “enhance[e] the transparency and validity of scientific information relied upon by the EPA” in its regulatory decision-making. In their First Proposed Rule, the EPA was required to ensure that they disclose the dose-response data and models underlying “pivotal regulatory science” were publicly available for validation and analysis. Later, in March 2020, the EPA issued a Supplemental Notice of Proposed Rulemaking “to clarify, modify and supplement certain provisions” in the First Proposed Rule. Both these Rules, together, accumulated significant criticism from inside and outside the federal government.
On the 6th of January 2021, the EPA published its Final Rule in the Federal Register. The Final Rule provides that “when promulgating significant regulatory actions or developing influential scientific information, will determine which studies constitute pivotal science and given greater consideration to those studies determined to be pivotal sciences for which the underlying dose-response data are available in a manner sufficient for independent validation.” However, the EPA did not provide guidelines or procedures for how it will implement the Final Rule. Further, the EPA declared that the two Final Rule would come into immediate effect for two reasons. Firstly, because the Final Rule governs internal EPA procedure, and therefore, stands exempt from the general 30-day notice requirement of the Administrative Procedure Act (APA). Secondly, the EPA found “good cause” to make the Final Rule effective immediately because immediate implementation… is crucial for ensuring confidence in the EPA’s decision-making process.
Legally, a court is required to grant summary judgment where the movant demonstrates that no genuine dispute exists “as to any material fact” and the movant is “entitled to judgment as a matter of law”. Under the APA, a reviewing court “shall… hold unlawful and set aside” agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”.
Decision of the District Court of Montana
According to Brian Morris, Chief District Judge sitting in the District Court of Montana, it was for the plaintiffs to establish that they possess the standing to invoke the Court’s jurisdiction. In essence, the “irreducible constitutional minimum of standing” contains three elements: injury-in-fact, causation, and redressability.” And in that, the burden of establishing these elements is on the party that invokes the Court’s jurisdiction.
In relation to the Injury-in-fact, a plaintiff is required to show that it suffered “an invasion of a legally protected interest”, which was “concrete and particularized” and “actual or imminent, not conjectural or hypothetical”. In case of a procedural standing case, the plaintiff is required to show that procedures at issue are designed to protect some “threatened concrete interest” to prove an injury-in-fact. To establish a procedural injury-in-fact, a plaintiff must demonstrate (1) that it has a procedural right that, if exercised, could have protected [its] concrete interests; (2) that the procedures in question are designed to protect those concrete interests, and (3) that the threat of the challenged action to the plaintiff’s concrete interests is reasonably probable. Moreover, under the APA, plaintiffs have the right to petition to postpone the Final Rule’s effective date. 5 U.S.C. § 705 authorizes the agency to postpone a rule “pending judicial review” as “justice requires”. This process provides a petitioner with immediate relief from regulation while the courts consider the merits of a legal challenge. The caveat to the rule provision, however, is that the rule in question cannot already be in effect; if it is, it cannot be postponed. The EPA’s decision to make the Final Rule immediately effective cut off the plaintiff’s ability to seek postponement under section 705 as the plaintiff would have been entitled to do under proper circumstances.
Although the Federal Defendants argued that the right to petition was not lost to the plaintiffs because of section 705, since alternative avenues existed, the Court found that the plaintiffs could have protected their concrete interest if they were duly permitted to apply the section 705 process. Effectively, therefore, the plaintiff’s contention that the EPA unlawfully made the Final Rule effective on publication was correct. Moreover, the Final Rule and its immediate effect present a reasonably probable threat to the plaintiff’s concrete financial and professional interests as organizations and through their members.
Additionally, the plaintiffs have also established a substantive injury-in-fact. As described for the procedural injury-in-fact, the plaintiffs adequately have alleged that their member-scientists will face immediate financial expenses to conform their agendas with the Final Rule. These expenses include expenses for review and revise grant application materials, redesign studies, and adjust rounds of cohort requirement to identify new study participants or provide new disclosures to existing study participants. Finally, regarding causation and redressability, Chief Justice Brian Morris held that once a plaintiff has established a procedural injury-in-fact, it must demonstrate “only that [it has] a procedural right that, if exercised, could protect [its] concrete interests”; this does not mean that they have to provide “proof that an officer would have acted differently in the ‘counterfactual world’ where he was properly authorized. In the court’s view, the plaintiff met the requirements of causality and redressability.
As far as the EPA’s Rulemaking was concerned, the Court held that the 30-day notice requirement protected “principles of fundamental fairness which require that all affect persons be afforded a reasonable time to prepare for the effective date” of a new rule “or to take other action which the issue may prompt”. The Court was not satisfied with the two justifications the Federal Defendants put forward to defend the immediately effective Final Rule. The Court stated that the Final Rule was substantive. Moreover, the EPA’s limited “good cause” justification fell short; in that, the EPA failed to demonstrate how delayed implantation would cause real harm to life, property, or public safety.
In conclusion, the Court held that there were no material facts in dispute; and the plaintiffs have met their burden and are entitled to judgment as a matter of law based on the administrative record before the court. Hence, the EPA’s decision to make the Final Rule immediately effective on publication was “arbitrary, capricious” and “otherwise not in accordance with law”.
A copy of the judgment can be found here.
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