A U.S. District Judge in Montana has paused a rushed attempt by the Trump administration to restrict the science used by the EPA to make public health decisions.
Judge Brian Morris ruled from U.S. District Court in Great Falls, Montana, late Wednesday that the Environmental Protection Agency had unlawfully rushed its rule to significantly restrict the amount of the medical and scientific research that could be used for decision making.
The EPA had attempted to impose the rule on Jan. 6, the day it was declared final, rather than give the public the standard 30-day notice. Plaintiffs in the case had asked Morris to stop the EPA’s rapid rollout. The judge also indicated EPA’s attempt to restrict scientific research didn’t appear to be legal, but he referred that issue for further discussion.
The Environmental Defense Fund, Montana Environmental Information Center, and Citizens for Clean Energy were the plaintiffs in the lawsuit.
Asked whether the EPA intends to pursue the Trump-era policy, Melissa Sullivan, a spokesperson for the agency emailed a response suggesting the Biden-Harris Administration wouldn’t be doing so.
“EPA is committed to making evidence-based decisions and developing policies and programs that are guided by the best science,” the statement said. “EPA will follow the science and law in accordance with the Biden-Harris Administration’s executive orders and other directives in reviewing all of the agency’s actions issued under the previous Administration, including the Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information rulemaking. EPA will ensure that its actions protect public health and the environment.”
Scientific and medical researchers had cautioned that by excluding research, Trump’s EPA would erode the scientific foundation supporting clean air and clean water protections crucial to public health. Groups like the American Lung Association said the attempt to limit medical and scientific research had its origins in Big Tobacco’s fight against the EPA using science to prove that secondhand cigarette smoke caused cancer.
Faced with an emerging EPA study in the early 1990s that proved secondhand smoke caused cancer and premature death, tobacco companies argued that the confidential medical records of the people participating in health research should be made public.
“The tobacco industry came up with this idea of attacking the underlying science and tried to say there was something untoward about keeping this information private. They tried to disrupt the policies, the regulations that would be adopted as a result of information based on this private confidential personal information that was inconvenient to the tobacco industry’s policy objectives,” said Paul Billings, the American Lung Association’s vice president of public policy. “The polluters have sort of picked this up and it’s been bouncing around for a couple of decades. And then the last administration really went for it with this rule-making after legislation trying to move this forward in Congress was rejected.”
What polluters are asking for clashed with basic privacy rights. The way the researchers do this work is that research participants consent to sharing their confidential, personal health information under the understanding that their information will remain confidential, Billings said. That’s important so people will have a willingness to participate in research studies.
The EPA under Trump sought to require the disclosure of the confidential health records under the auspices of transparency. All raw data would have to be produced, or the research wouldn’t be used. The proposed rule was titled “Strengthening Transparency in Regulatory Science.” Enacted, the rule would not only make it possible to exclude health research for new policies, but also allowed existing policies to be reversed.
Closer to home, Montana attorney Roger Sullivan said the research that proved the cancerous dangers of asbestos was crucial to the dozens of people of Libby who he represented in lawsuits against W.R. Grace.
“Science really, ultimately serves the public interest. And censorship of science does nothing but serve private corporate interests when it comes to these hazardous air pollutants,” Sullivan said. “I don’t think it’s surprising that Judge Morris reached the conclusion that he did, but had he not, it could well have had some harmful effects on protecting the health of individuals impacted by harmful toxic agents.”
Sullivan is a member of the Montana Environmental Information Center’s board of directors. He said that researchers caught between the privacy rights of the people in their studies and an EPA requirement that medical data be revealed, would have been forced to discard key scientific evidence.
“It was just a classic catch 22 that would have had a pernicious effect on citizens in general, but particularly some very at-risk populations here in Montana,” Sullivan said.
The Environmental Defense Fund in press release said Trump’s EPA censored science, which wasn’t legal.
“The Trump administration broke the law by issuing a harmful rule to censor life-saving medical science, and broke the law again by trying to make the rule immediately effective,” said Ben Levitan, EDF senior attorney. “The Censored Science Rule weakens EPA’s ability to protect Americans from dangerous pollution, toxic chemicals and other threats. Today’s ruling delays the rule’s effective date, and also undercuts the legal basis for issuing the rule at all. We’ll also keep fighting to get this rule off the books for good.”