By Dave Cooke, Union of Concerned Scientists
No, that’s not an Onion headline—a new report from the EPA Office of the Inspector General (OIG) finds that Administrator Scott Pruitt tried to rush through a regulation which would allow the new sale of trucks that lack modern pollution controls without actually considering whether that would be, you know, a bad thing. The report is clear and consistent with an administration that seems hellbent on doing whatever it can to eliminate environmental safeguards, especially when it will benefit political cronies and/or special interests.
The investigation was sparked by Senators Tom Carper and Tom Udall, who requested that the EPA OIG take a closer look at the rulemaking on glider trucks (aka #ZombieTrucks). What the EPA OIG found is damning.
EPA refused to look at the science
The most obvious and egregious finding in the report is exactly what we’ve been saying all along:
“Then-EPA Administrator Scott Pruitt directed that the Glider Repeal Rule be promulgated as quickly as possible…[and] directed the Office of Air and Radiation to develop the proposed rule without conducting the analyses required….The lack of analyses caused the public to not be informed of the proposed rule’s benefits, costs, potential alternatives, and impacts on children’s health during the public comment period.”
In fact, not only did the then-EPA Administrator try to ram through the proposal without any supporting analysis, but it appears that in the waning months of his Administration, the Scott Pruit-led EPA drafted a final rule that ignored any such evidence.
The administration already had a good sense of what the benefits of the rule it was now proposing to repeal were, thanks to analysis by the previous administration when the rule was first finalized—yet here they were closing their eyes and ears to these already-known facts for political expediency.
Legal counsel at EPA even explicitly noted for EPA staff that the draft pushed forward by then-Administrator did not attempt to provide any of the analysis requested by the Office of Management and Budget in its review of the rule, and that “if such analysis were ever to be produced, it would most likely not be as ‘supportive’ of the proposal as OMB and others might like.”
Rather than halting the proposal in its tracks, however, knowing that analysis couldn’t be produced to support the proposed rule simply pushed the Administrator to rewrite the rules to avoid showing his work.
EPA tried to change the rules
There are different requirements for how much data must be provided in support of a new regulatory action depending on its consequences. Given the obvious concern about public health damages, the repeal of the glider truck rule was appropriately noted as “economically significant.” However, this means it requires the highest level of scrutiny and support, including an evaluation of the environmental health effects on children and an explanation of why the action is preferable to potentially other feasible alternatives.
Rather than offering careful and reasoned explanations of why this regulatory action is desirable (it’s not, obviously) or what the overall cost-benefit analysis of the rule would be (VERY BAD!), EPA simply changed the classification of the rule from “economically significant” to “significant” without any documented justification in order to try to circumvent having to explain its actions.
The EPA OIG importantly pointed out this massive breach of public interest:
“Inherent to the formulation of a decision are supporting information and supporting rationale. The agency failed to make and preserve adequate records of either, leaving entirely unexplained the [proposed repeal]’s change in designated significance 1 day prior to signature by the EPA Administrator.”
The opaque rationale for this seemingly politically motivated change was only further muddied by the White House’s response to the investigation of this action.
The White House interfered with the investigation
Any decision to alter a regulation’s designation is made jointly by the White House’s Office of Management and Budget (OMB), its Office of Information and Regulatory Affairs (OIRA), and the regulating agency (in this case, EPA). When the EPA OIG pushed forward to investigate the rationale for the agency’s action, the White House stonewalled the process, refusing to cooperate.
“The OMB refused to provide the OIG with specific responses or documentation related to OIG questions regarding OIRA’s involvement in this rulemaking and the decisions made, stating that the information sought was ‘particularly sensitive.’ In April 2019, the acting EPA IG notified both the OMB Director and Congress that the OMB failed to respond to our request for information, which ‘constitutes a clear impediment to our audit’.”
Ultimately, this refusal to comply with the OIG’s investigation prevented the EPA OIG from “definitively determin[ing] the rationale for the significance determination for the proposed rule.”
This broken regulatory process is the new normal
While there are some pieces missing to fully connect all of the dots thanks to the White House’s refusal to participate in the investigation, it is clear from the OIG report that the current administration’s regulatory processes at EPA are broken. EPA officials were even reporting that “the atmosphere was described as ‘the wild west’” with “processes such as this rulemaking  done ‘fast and loose.”
A broken regulatory process means that the public is not being adequately informed nor adequately protected:
“The EPA did not comply with analyses requirements … nor did the EPA follow its [Action Development Plan] for the proposed Glider Repeal Rule or meet Federal Records Act requirements. Such actions call into question the quality of EPA rulemaking processes and leave the public and stakeholders without the information necessary to make informed comments on EPA regulatory actions.”
While Congressional oversight can try to help shed light on the shady, politically motivated deregulatory actions coming out of the current EPA, a lack of transparency and refusal to engage in evidence-based regulation will continue to harm both the public’s health and welfare and its trust in the agency responsible for ensuring its protection.