Yesterday, the U.S. District Court in Montana gave Firm client Environmental Defense Fund a win in its challenge to the Environmental Protection Agency’s “Strengthening Transparency in Regulatory Science” Rule.  The Rule would have limited EPA’s ability to consider “dose-response” studies when making regulatory decisions, such as setting emissions standards, unless underlying data were publicly available, including personal information about study participants.  The Rule would have limited EPA’s ability to consider and rely on the most impactful science when making decisions critical to protecting public health and the environment.  In the closing days of the Trump administration, EPA sought to make the rule effective immediately upon publication in the Federal Register on January 6, 2021, bypassing the normal administrative procedure of making a rule effective 30 days after publication in the Federal Register and thereby limiting the ability of the incoming Biden administration to review the Rule. 

EDF, the Montana Environmental Information Center, and Citizens for Clean Energy challenged EPA’s decision to make the Rule immediately effective, arguing that EPA had failed to show that the Rule met the exceptions to the 30-day effectiveness period for procedural rules or for good cause.  Plaintiffs sought an expedited decision declaring that the Rule would become effective 30 days after publication to allow time for Plaintiffs to petition EPA for an administrative stay.  Plaintiffs also argued that EPA did not have the authority to promulgate the Rule, as the agency relied upon a law which, at most, gives EPA the authority to issue procedural rules.

The Montana District Court agreed with the Plaintiffs that EPA erred in making the Rule immediately effective because the Rule is not procedural and EPA did not demonstrate good cause.  This ruling makes the Rule ineffective until February 5, 2021, 30 days after the publication date.  This opens the door for the Biden Administration to further postpone the Rule’s effective date and consider any petitions for reconsideration.  In addition, although the Court did not rule on whether EPA exceeded its authority to issue the Rule, it made clear that, because the Rule is substantive, rather than procedural, there is “significant doubt whether EPA retains any legal basis to promulgate the Final Rule.” 

Kaplan Kirsch & Rockwell attorneys Eric Pilsk, Tom Bloomfield, Sarah Judkins, and Sam Caravello, along with other outside counsel and EDF attorneys, assisted EDF in this litigation.