By Lisa M. Campbell and James V. Aidala
On May 25, 2018, the U.S. Environmental Protection Agency (EPA) issued an extension of the comment period of the proposed rule entitled “Strengthening Transparency in Regulatory Science” (Science Rule) that EPA issued on April 30, 2018. 83 Fed. Reg. 24255. The Federal Register notice states that EPA will extend the comment period from May 30, 2018, to August 16, 2018. EPA states that it is making these changes “in response to public requests for an extension of the comment period and for a public hearing.” It is noteworthy that the extension was issued on the heels of EPA’s receipt of letters, one submitted by eight Attorneys General and another by 20 Senators, addressing the proposal, as described below. Comments can be filed in Docket ID No. EPA-HQ-OA-2018-0259 on www.regulations.gov.
EPA’s notice also announces that it will be holding a public hearing for the proposed rule on July 17, 2018, from 8:00 a.m. to 8:00 p.m. (EDT) in Washington, D.C. that will provide “the public with an opportunity to present oral comments regarding [the Science Rule]”; and will “provide interested parties the opportunity to present data, views, or arguments concerning the proposal.” The notice states that EPA may ask clarifying questions during the oral presentations, but will not respond to the presentations at that time. Registration for the public hearing will be available online; registration information is available in the Federal Register notice.
EPA’s extension and its grant of requests for a public hearing follows closely in time of its receipt, on May 7, 2018, of a letter to EPA Administrator Scott Pruitt from eight Attorneys General -- those of New York, California, Delaware, Iowa, Maine, Minnesota, Pennsylvania, and the District of Columbia -- expressing their concern regarding the Science Rule. The letter requests EPA to withdraw the proposed rule and to consult with the National Academy of Sciences (NAS). The letter states that if EPA is unwilling to withdraw the rule, then EPA should extend the comment period by at least 150 days to “provide for appropriate consultation with the [NAS],” as “a full six-month comment period … is necessary to provide the public and other stakeholders a meaningful opportunity to evaluate the proposal and its implications for the agency’s ability to meet its obligation to protect public health and the environment under federal environmental laws.”
On May 14, 2018, 20 Senators submitted a letter to Pruitt requesting that the comment deadline be extended, to July 30, 2018, stating that this extra time would give “stakeholders adequate time to draft and submit thorough, well-reasoned comments,” as the rule is “expected to have a significant effect on the types and number of scientific studies EPA considers during rulemaking” and “implicates patient privacy.”
It is not clear if the extension of time for public comment indicates a desire to develop a more thorough record behind whatever may emerge as the final rule or is a reaction to some of the intense opposition to the entire scheme. “EPA Science” has been controversial and an emerging political issue for some time, but the reaction to the proposal has been intense even in comparison to many of the changes the Trump Administration has sought to impose on other EPA policies and procedures. To some degree, if the Trump Administration hopes to change EPA’s fundamental approach to decision-making, the sooner the better for the potential to leave a lasting change in place. Meanwhile, even from a relatively neutral perspective, the proposal is complicated as to how such new requirements would work -- what it applies to, or how some of the critical new terms would be defined (e.g., “pivotal science”), among other complex elements. This complexity may be its ultimate undoing, or perhaps careful consideration of voluminous (and much critical) public comment will hone the proposal into something more likely to achieve its stated goals.
More information about the Science Rule is available on our blog and in our memorandum EPA Releases Strengthening Transparency in Regulatory Science Proposed Rule.