Get Ready for Phase 2 of the Deregulation Wars

by Daniel Farber

August 05, 2019

Originally published on Legal Planet.

The first phase of Trump's regulatory rollbacks has been directed against Obama's climate change regulations. Those deregulatory actions will be finalized soon. What happens next will be in the hands of the courts. But the Trump EPA is now beginning a new phase in its attack on environmental regulation. Having tried to eliminate climate regulation, its next move will be an attack on basic protections against air pollution.

The Clean Air Act, the federal air pollution statute, is largely structured in terms of achieving national ambient air quality standards (NAAQS). In March 2020, EPA will propose revisions in the standards for ozone and particulates, the two most important pollutants. It has already started work on the revisions. Guess what? EPA won't be planning to tighten the standards. If anything, they are likely to loosen them, weakening a crucial safeguard.

Trump's EPA has been working over the past couple of years to undermine the scientific basis for the standards. First, it purged CASAC, its general scientific advisory board, of independent academic experts, replacing them with industry-connected scientists. The committee currently does not contain any statisticians, experts in modeling risk assessment, or epidemiologists. The administration also eliminated the specialist advisory boards advising CASAC on the complex science relating to these two pollutants. Even Trump's handpicked CASAC has complained about losing the advice of those specialists.

Second, the Trump EPA has been working to limit the evidence that it will consider in deciding on air quality levels. It floated a proposal, which it is still considering, to eliminate any scientific study unless the sponsors of the study were willing and able to make their data available to industry or the public at large, which is often impossible because of patient confidentiality concerns. The purported purpose is to improve transparency and scientific rigor, but the real goal seems to be blindfolding the agency from considering key studies on the health effects of particulates.

It remains to be seen whether the administration will be able to go through the complex process of preparing its air quality proposals by the planned March 2020 deadline. The current plan is to finish the ozone standards by late 2020. That might just be doable – it seems to have taken between six months and a year to go from proposal to final rule. What happens after that is harder to predict. If the Democrats somehow manage to capture Congress and the White House, they might be able to use the Congressional Review Act to kill the rollbacks. If not, the proposals will undoubtedly still be pending in court when the next presidential term begins. A Democratic administration would undoubtedly seek to have them sent back to EPA for further consideration. If Trump is reelected, then it will be up to the D.C. Circuit and perhaps the Supreme Court to decide whether EPA has given a reasonable, evidence-based explanation for the rollbacks.

The most direct impact of the rollbacks will be on public health, but there will also be consequences for climate change. Reducing these key pollutants would also tend to reduce use of fossil fuels because of the costs of meeting tighter standards. Lowering the air quality standards, however, would be a boon for the oil and coal industries. So it's public health and climate change on one side of the balance, and the oil and coal industries on the other. You can probably decide for yourself which side Trump is likely to favor.

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Daniel A. Farber is the Sho Sato Professor of Law and Director of the California Center for Law, Energy and the Environment at the University of California, Berkeley.

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