Dive Brief:

• The U.S. Environmental Protection Agency on Tuesday finalized a rule that narrows what studies it will consider in future rulemakings, based on whether the underlying data is public.

• EPA said it will now give greater consideration to scientific studies that provide public data when considering how a particular pollutant or contaminant impacts human health and the environment, in an effort to be more "transparent." Critics of the rule, including former EPA officials, environmentalists and public health officials, say the move will limit the ability of the agency to consider critical scientific evidence about the harms of environmental pollution.

• Because the rule is an internal "housekeeping" regulation, according to Administrator Andrew Wheeler, it is not subject to the Congressional Review Act, which allowed it to be finalized quickly, without a full notice and comment period. But some observers believe that will allow the incoming Biden administration to reverse it quickly.

Dive Insight:

EPA's order, even if stands under the Biden administration, is unlikely to have a major impact on the power sector, as it significantly waters down the original proposal brought forward under Scott Pruitt in 2018, according to John Bachmann, former Associate Director for Science/Policy and New Programs at the EPA Office of Air Quality Planning and Standards, serving until 2007.

"There [are] a lot of ways this thing, if it had been fully operational and implemented, … could have been pretty devastating, which is why a lot of people raised it as a big issue," he said. "And yet, the way they've written it now, there's a lot of potential loopholes that weaken that potential effect, even if it did take effect."

Administrator Wheeler on Tuesday, in announcing the finalization of the rule on a webinar hosted by the Competitive Enterprise Institute, clarified that the rule would not be retrospective, and no study will be "automatically" cut from consideration.

The rule's initial requirements led to fears that studies such as Harvard University's Six Cities study, which found significant ties between high exposure to air pollution and early deaths, could be deemed unreliable as supporting evidence for rulemaking by the agency because the underlying data relied in part on confidential health information. The study was considered pivotal in EPA regulations around strengthening particulate matter and other air quality standards. Earlier this year, the EPA ruled decided to keep PM standards the same, contrary to advice from public health and environment experts.

But because the Harvard study's underlying data was available to peer reviewers under restrictive access, "it's very easy for that one to qualify, … to continue to be used," said Wheeler. And even if it didn't meet the new rule's requirements, the administrator still has the power to determine a study can be used if it's "pivotal" to the relevant rulemaking.

EPA says the rule is intended to increase "transparency" within the agency's rulemaking process, but critics say the rule will add unnecessary burdens to an already robust process. 

"EPA has still never answered exactly what this rule is trying to solve. And unfortunately, the impact of this rule, even [though] it's sort of been narrowed a little bit ... threatens to hamstring EPA's ability to protect public health," said Genna Reed, lead science and policy analyst at the Union of Concerned Scientists.

"That's really troubling, because for decades, the EPA has functioned really pretty well with just evaluating the rigor of the external studies that come into the EPA to conduct rulemaking. And a lot of that is determined throughout the peer review process that already exists."

But legal experts say that because the rule is procedural, the Biden administration can "kill it" easily. "The key is that it is an internal 'housekeeping' rule that does not have any binding effect on the public," said Patrick Parenteau, professor of Law and senior counsel in the Environmental Advocacy Clinic at Vermont Law School.