Both environmental groups and anti-regulation activists said the rule would utterly transform the EPA’s mission in ways that would outlast this administration. The proposal “may be the most consequential decision made by EPA since the election of Donald Trump,” said Joseph Bast, the director of the Heartland Institute, a conservative think tank that rejects the mainstream scientific consensus about climate change, in a statement.
“The science that we use is going to be transparent, it’s going to be reproducible,” Pruitt said after signing the proposal. “It’s going to be able to be analyzed by those in the marketplace, and those that watch what we do can make informed decisions about whether we’ve drawn the proper conclusions or not.”
“This is not a policy. This is not a memo. This is a proposed rule,” he added, implying that future administrations will not be able to reverse the measure once it is finalized. Before it becomes a rule though, it’s likely to become a lawsuit—numerous environmental groups have already promised to fight the rule in court. And the way its written, many say, makes it unlikely to stand up to such scrutiny.
To support the measure, the EPA cites a large, nonpartisan literature of recommendations about science in government. An agency statement bragged that the rule “is consistent with” two bipartisan reports in particular: one from the Administrative Conference of the United States, and one from the Bipartisan Policy Center.
Wendy Wagner, a law professor at the University of Texas, knows both of those reports well. In fact, she wrote them. Wagner was the sole author of the Administrative Conference report, and she served on the seven-author panel that produced the Bipartisan Policy Center’s recommendations.
She said the proposed rule had nothing to do with her and her colleagues’ work.
“I really don’t know what the problem is that they think they’re fixing,” she said, adding that many of her co-authors “would laugh and hoot” at some of the scientific ideas expressed in the rule.
“They don’t adopt any of our recommendations, and they go in a direction that’s completely opposite, completely different,” she told me after reading the rule. “They don’t adopt any of the recommendations of any of the sources they cite. I’m not sure why they cited them.”
Other legal scholars were unsparing in their criticism of the rule. “There’s so many different issues with it that it’s hard to know where to begin,” said Sean Hecht, a professor of environmental law and policy at UCLA. “Reading the rule, it doesn’t look like a proposal that has been strongly vetted by career lawyers.”
“To anyone who’s looked at a lot of EPA rules, this rulemaking is extraordinary in the lack of reference to any legal authority,” he said.
Betsy Southerland, a former director in the EPA’s Office of Water and a 30-year veteran of the agency, told me that the rule did not legally seem like a rule at all. At one point, the agency asks the public to comment on which Congressional laws give it the greatest authority to issue the rule. “That’s a stunner,” she said.