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June 10, 2019 by Daniel Farber

Updates on the War on Science

Originally published on Legal Planet.

The Trump administration's hostile attitude toward science has continued unabated. The administration has used a triad of strategies: efforts to defund research, suppression of scientific findings, and embrace of fringe science.

  1. Budget. The administration continues to favor deep cuts in research support. Its initial 2020 budget proposal calls for a 13 percent cut to the National Science Foundation, a 12 percent cut at the National Institutes of Health, and elimination of the Energy Department's research support for advanced energy technologies (ARPA-E) and EPA's climate change research office. The proposal would also eliminate funding for the Sea Grant program, which funds environmental research on the coasts. The budget proposal is unlikely to become law, given that similar proposals were rejected even when the Republicans controlled both houses of Congress. But they are indicative of the administration's values.  
  2. Toxic chemical risks. A report by the Government Accountability Office concluded that since June 2018, senior officials at EPA have blocked the addition of new chemical risk assessments to the Integrated Risk Information System (IRIS). EPA has also delayed for months on issuing a report on formaldehyde risks. The House Science Committee found evidence that a political appointee who …

May 20, 2019 by James Goodwin
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The annual Duke Law Journal Administrative Law Symposium has long served as one of the most prestigious fora for cutting-edge administrative law scholarship. This year's event, which featured the leadership and contributions of six CPR Member Scholars, was no exception. Each symposium is built around a theme, and this year's topic was "Deregulatory Games," which examined how the Trump administration's aggressive and often bizarre assault on our system of regulatory safeguards has tested the long-standing doctrines, norms, and institutions of U.S. administrative law. Last week, the Duke Law Journal published a compilation of articles derived from the presentations at this year's symposium.

It's safe to say no aspect of the Trump administration has been normal, and that especially rings true with regulation. While undermining the regulatory system has long been a goal of conservative policymakers and their corporate interest allies, the manner in which …

April 18, 2019 by James Goodwin
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One of the most successful environmental regulations in U.S. history is under attack from the Trump EPA – and its demise might be accomplished by shady bookkeeping. That is the conclusion of comments filed by Center for Progressive Reform Member Scholars and staff on April 17.

Since it was issued in 2011, the Mercury and Air Toxics Standard (MATS), which establishes rigorous technology-based standards to limit hazardous air pollution from fossil-fueled power plants – has reduced electric utilities' emissions of neurotoxic mercury by 81 percent. Significantly, the rule has achieved these reductions at less than a third of its projected costs while delivering public health savings estimated at billions of dollars each year.

The attack has come in the form of a proposal to undo what is known as the "appropriate and necessary" finding that undergirds the rule. In the provision of the Clean Air Act that authorized …

April 16, 2019 by Bill Funk
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Last week, the acting director of the Office of Management and Budget (OMB) issued a memorandum to all agencies regarding compliance with the Congressional Review Act (CRA). This memo supersedes one issued in 1999 and pulls independent regulatory agencies – specifically designed by Congress to be less prone to political interference than executive agencies – into a far more centralized CRA review process.

The CRA requires federal agencies to send newly adopted rules to the House and Senate before the rules become effective. This enables both houses the opportunity to adopt a joint resolution disapproving the rule. If both houses adopt such a resolution, it is sent to the President for his signature or veto. Although only one rule was disapproved under the CRA in its first 20 years of existence, in the first year of the Trump administration, some 14 regulations were disapproved under the CRA.

The CRA …

April 15, 2019 by Matt Shudtz
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The federal Clean Water Act has been a resounding success as a tool for restoring our nation's waterways and preserving wetlands and other vital components of our ecosystems. But that success depends, in part, on restricting development in ecologically sensitive areas. That's why the Trump administration has proposed to narrow the scope of the Clean Water Act's protections. Not by amending the law, mind you – that wasn't possible when Republicans controlled both houses of Congress, much less now. Instead, the Trump administration is trying to weaken the Clean Water Act by redefining what it means for something to be a "water of the United States."

If history is any guide, and CPR Member Scholars' assessment of the proposal suggests it will be, the Trump administration's proposal will fail. It will fail because, as Member Scholar William Buzbee recently put it to a Washington Post reporter inquiring …

April 12, 2019 by Daniel Farber
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Originally published on Legal Planet.

Every day, it seems that there is a headline about some investigation involving campaign finance violations, the White House, or the actions of some foreign power. Perhaps that's all the bandwidth that Congress has. But there are other areas calling out for inquiry. Here are just a few:

CAFE Standards. The car industry asked for delays and modifications in fuel efficiency standards. The administration came back with a drastic rollback that went far beyond what industry requested, to the dismay of at least some major car firms. How did that happen? Outside economists scoff at the analysis Department of Transportation officials ran roughshod over EPA staff, whose complaints were squelched by the White House. Who exactly was responsible for those decisions? And what role did the oil companies play behind the scenes? There are already indications that oil companies were somewhat involved …

April 9, 2019 by Daniel Farber
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Originally published on Legal Planet.

Cost-benefit analysis has long been the target of environmentalist ire. But one lesson of the Trump years has been that economic analysis can be a source of support for environmental policy — it is the anti-regulatory forces who have to fudge the numbers to justify their actions. Most energy and environmental economists are aghast at Trump's assaults on climate change regulations — many of them would instead favor stricter regulation over the status quo. Maybe it's time for at least a temporary ceasefire while we are allies in resisting Trump's rollbacks.

There is little doubt that the Reagan administration adopted cost-benefit analysis as a tool for reaching its own preferred deregulatory outcomes. The Office of Information and Regulatory Affairs (OIRA) was put in charge of cost-benefit analysis with the expectation that it would be a death trap for regulations. OIRA seemed happy to oblige …

April 1, 2019 by Daniel Farber
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Originally published on Legal Planet.

EPA pollution regulations are based on an assessment of the risks posed by pollutants. This can be a complex scientific judgment. The Clean Air Scientific Advisory Committee (CASAC), the agency's scientific advisory board, is pushing for major changes in the way that EPA approaches this analysis. The effect would be to make it much harder for EPA to prove that a risk exists.

Currently, risk assessment is based on a "weight of the evidence" approach that considers all of the peer-reviewed literature, rather than limiting itself to studies using specific methodologies. Tony Cox, the industry consultant who now heads CASAC after Scott Pruitt purged most academic scientists, has been pushing for a radical change. He wants to limit risk assessment to studies that use a specific set of methods to establish that a substance actually causes harm. In particular, he rejects studies …

March 29, 2019 by Daniel Farber
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Originally published on Legal Planet.

The Washington Post has a list of false statements by Trump, which turns out to be searchable by topic. They've found, "In the first eight months of his presidency, President Trump made 1,137 false or misleading claims, an average of five a day." As of March 17, he was up to 9,179 false statements. There were 200 false statements about the environment – that's about one every four days, which compares favorably to the number of misrepresentations on some other topics. They're quite repetitive, but I've picked out some of the most frequent ones. By the way, if you're interested, the Post also explains why each of these statements is wrong. I shudder to think what people who follow him on Twitter are picking up in the way of misconceptions.

Air and Water

  • "Some of the best farmland in the …

March 25, 2019 by James Goodwin
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During her confirmation hearing, Neomi Rao – then the administrator of the White House Office of Information and Regulatory Affairs (OIRA) and President Trump's pick to fill Justice Kavanaugh's vacant seat on the U.S. Court of Appeals for the D.C. Circuit – attracted a lot of controversy. Much of it surrounded the outrageous student newspaper commentaries she wrote as an undergrad, in which she casually passed judgment on date rape victims and the scourge of creeping multiculturalism. Now that Rao has been sworn in to a lifetime appointment of passing judgment with the full effect of the law, it's worth looking at another dispute that arose during the hearing – namely, how she should approach her legal and ethical responsibility to recuse herself from cases involving rules she worked on as OIRA administrator.

In an exchange with Sen. Dianne Feinstein (D-Cal.) during the hearing, Rao pointedly refused to …

CPR HOMEPAGE
More on CPR's Work & Scholars.
Sept. 22, 2020

Fighting Global Warming in a Chilly Judicial Climate

Sept. 17, 2020

Pandemic Spawns Dangerous Relaxation of Environmental Regulations

Sept. 16, 2020

The Pandemic's Toll on Science

Sept. 15, 2020

Citizen Suits, Environmental Settlements, and the Constitution: Part II

Sept. 14, 2020

Citizen Suits, Environmental Settlements, and the Constitution: Part I

Sept. 8, 2020

Pandemic's Other Casualty: Expertise

Sept. 1, 2020

Trump Deregulation Ignores Both Science and Law