Case 4:21-cv-00003-BMM Document 1 Filed 01/11/21 Page 1 of 15
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`GREAT FALLS DIVISION
`
`
`
`
`
`
`
`Case No.
`
`
`COMPLAINT
`
`EXPEDITED RELIEF
`SOUGHT
`
`
`
`ENVIRONMENTAL DEFENSE FUND;
`MONTANA ENVIRONMENTAL
`INFORMATION CENTER; and CITIZENS
`FOR CLEAN ENERGY,
`
`
`Plaintiffs,
`
`v.
`
`
`
`
`U.S. ENVIRONMENTAL PROTECTION
`AGENCY; and ANDREW R. WHEELER, in
`his official capacity as Administrator of
`the U.S. Environmental Protection
`Agency,
`
`
`Defendants.
`
`
`
`
`
`
`INTRODUCTION
`This is an action under the Administrative Procedure Act challenging the
`
`lawfulness of a sweeping new rule published in the Federal Register last Wednesday,
`
`January 6, 2021. The new rule will cripple the Environmental Protection Agency’s
`
`ability to protect public health and the environment by fundamentally transforming
`
`the ways in which the agency may consider and rely on scientific evidence. Under
`
`the guise of promoting “transparency,” the rule will limit the EPA’s discretion to
`
`consider research for which the underlying data are not publicly available. Because
`
`legal and ethical rules prevent making data involving human subjects available to the
`
`
`
`
`
`1
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`GREAT FALLS DIVISION
`
`
`
`
`
`
`
`Case No.
`
`
`COMPLAINT
`
`EXPEDITED RELIEF
`SOUGHT
`
`
`
`ENVIRONMENTAL DEFENSE FUND;
`MONTANA ENVIRONMENTAL
`INFORMATION CENTER; and CITIZENS
`FOR CLEAN ENERGY,
`
`
`Plaintiffs,
`
`v.
`
`
`
`
`U.S. ENVIRONMENTAL PROTECTION
`AGENCY; and ANDREW R. WHEELER, in
`his official capacity as Administrator of
`the U.S. Environmental Protection
`Agency,
`
`
`Defendants.
`
`
`
`
`
`
`INTRODUCTION
`This is an action under the Administrative Procedure Act challenging the
`
`lawfulness of a sweeping new rule published in the Federal Register last Wednesday,
`
`January 6, 2021. The new rule will cripple the Environmental Protection Agency’s
`
`ability to protect public health and the environment by fundamentally transforming
`
`the ways in which the agency may consider and rely on scientific evidence. Under
`
`the guise of promoting “transparency,” the rule will limit the EPA’s discretion to
`
`consider research for which the underlying data are not publicly available. Because
`
`legal and ethical rules prevent making data involving human subjects available to the
`
`
`
`
`
`1
`
`
`
`Case 4:21-cv-00003-BMM Document 1 Filed 01/11/21 Page 2 of 15
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`public—or available through “restricted access”—the rule hinders consideration of
`
`exactly the sorts of epidemiological and other studies that are most critical to the
`
`development of public-health standards. Overriding the objections of the EPA’s own
`
`top scientists, the agency’s leadership pushed the rule through in the administration’s
`
`waning days and took the unusual step of making it effective immediately upon
`
`publication. Both the rule itself and its immediate effective date exceed the agency’s
`
`statutory authority.
`
`First, as authority for enacting the rule, the EPA relied solely on the Federal
`
`Housekeeping Statute, 5 U.S.C. § 301, which the agency claims gives it the
`
`“authority to promulgate housekeeping regulations governing its internal affairs.”
`
`Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and
`
`Influential Scientific Information, 86 Fed. Reg. 469, 471 (Jan. 6, 2021). Although the EPA
`
`is not one of the Executive departments listed in that statute, it contends that such
`
`authority was later extended to it. Id. Moreover, the statute only authorizes agencies
`
`to enact rules that ‘‘govern internal … affairs.” Chrysler Corp. v. Brown, 441 U.S. 281,
`
`309 (1979). The EPA’s authority under the statute thus depends on two
`
`assumptions—that the rule “is a procedural rule within the scope of the EPA’s
`
`housekeeping authority,” and that the EPA has that authority in the first place. Id.
`
`at 472. But both assumptions are wrong. The critical question in determining
`
`whether a rule is procedural is whether it leaves the agency with discretion to
`
`
`
`
`
`2
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`Case 4:21-cv-00003-BMM Document 1 Filed 01/11/21 Page 3 of 15
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`disregard the rule in an individual case. The entire purpose of the EPA’s new rule
`
`here is to constrain the agency’s discretion to consider scientific research—a
`
`substantive restriction. And EPA lacks housekeeping authority in any event. Because
`
`the agency thus lacked authority to enact the rule under the housekeeping statute—
`
`the only source of authority it invoked—the rule is unlawful and this Court should
`
`set it aside.
`
`Second, the agency took the unusual and unlawful step of making the rule
`
`effective immediately upon its publication in the Federal Register last Wednesday.
`
`But the Administrative Procedure Act requires that, absent a showing of “good
`
`cause” or another specified exception, the publication of a new “substantive” rule
`
`“shall be made not less than 30 days before its effective date.” 5 U.S.C. § 553(d). In
`
`concluding that the rule is exempt from this requirement, the EPA repeats its error
`
`of treating its sweeping and transformational rule as just “procedural” rather than
`
`substantive. It also claims to have established the requisite “good cause” under
`
`section 553(d)(3) because the rule’s “goals of ensuring transparency and consistency”
`
`in scientific research are “crucial for ensuring confidence in EPA decision-making.”
`
`86 Fed. Reg. 472. But merely claiming that a rule has important goals cannot
`
`demonstrate good cause for depriving the public of notice. All agency regulations
`
`purport to advance some beneficial purpose; if that were enough, they would all be
`
`exempt from the APA requirement. Instead, the question under section 553(d) is
`
`
`
`
`
`3
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`Case 4:21-cv-00003-BMM Document 1 Filed 01/11/21 Page 4 of 15
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`whether the EPA has evidence of some crisis in confidence that urgently required it
`
`to put this rule into effect, following more than two and a half years, on the eve of a
`
`change in administration. It does not. To the contrary, the overwhelming scientific
`
`consensus reflected in the record is that the rule itself threatens confidence in the
`
`EPA’s decisions by forcing the agency to regulate without giving due weight to the
`
`best available scientific evidence. Because the agency’s decision to make the rule
`
`immediately effective thus violates the APA, the Court should declare that it will not
`
`become effective until February 5, 2021—30 days after its publication date. And the
`
`Court should ultimately set the rule aside.
`
`PARTIES
`Plaintiff Environmental Defense Fund is a national membership
`
`1.
`
`organization that relies on science, economics, and law to advocate for informed
`
`policy and decision-making to restore the quality of air, water, and other natural
`
`resources nationwide. Its members include scientists who conduct cutting-edge
`
`scientific research into the determinants of human health. It also employs its own
`
`scientists who conduct epidemiological and public-health research, and upon whose
`
`research EDF relies for its science-informed advocacy.
`
`2.
`
`Plaintiff Montana Environmental Information Center is a member-
`
`supported advocacy and public-education organization that works to protect and
`
`restore Montana’s natural environment, including through assuring that state and
`
`
`
`
`
`4
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`
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`Case 4:21-cv-00003-BMM Document 1 Filed 01/11/21 Page 5 of 15
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`federal officials comply with and fully uphold laws designed to protect the
`
`environment and Montana citizens from pollution and fossil-fuel development.
`
`3.
`
`Plaintiff Citizens for Clean Energy, Inc. is a nonprofit organization of
`
`Montana citizens whose objective is to convince decisionmakers to adopt clean-
`
`energy solutions in order to preserve Montanans’ health, lifestyle, and heritage, and
`
`to protect Montana’s land, air, water, and communities from the consequences of
`
`fossil-fuel development.
`
`4.
`
`Defendant U.S. Environmental Protection Agency is an agency of the
`
`United States within the meaning of the APA. Defendant Andrew R. Wheeler is
`
`Administrator of that agency. He is sued in his official capacity.
`
` JURISDICTION AND VENUE
`Because this case arises under the APA, this Court has jurisdiction
`
`5.
`
`under 5 U.S.C. § 702 and 28 U.S.C. § 1331.
`
`6.
`
`Venue is proper in this Court because plaintiffs Citizens for Clean
`
`Energy and Montana Environmental Information Center maintain their principal
`
`place of business in this district and are thus residents of this district for purposes of
`
`venue. See 28 U.S.C. § 1391(e)(1)(C). Divisional venue is proper in the Great Falls
`
`Division under L.R. 3.2(b) and Mont. Code. Ann. §§ 25-2-118, 25-2-125 because
`
`plaintiff Citizens for Clean Energy resides in this division at the time of the
`
`commencement of this action.
`
`
`
`
`
`5
`
`
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`Case 4:21-cv-00003-BMM Document 1 Filed 01/11/21 Page 6 of 15
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`STATUTORY BACKGROUND
`The Federal Housekeeping Statute provides that the head of certain
`
`7.
`
`Executive departments “may prescribe regulations for the government of his
`
`department, the conduct of its employees, the distribution and performance of its
`
`business, and the custody, use, and preservation of its records, papers, and property.’’
`
`5 U.S.C. § 301; see also id. § 101. The statute’s purpose is to grant specified Executive
`
`departments the authority to enact rules that ‘‘govern internal … affairs.” Chrysler
`
`Corp. v. Brown, 441 U.S. 281, 309 (1979). Accordingly, the statute authorizes ‘‘what
`
`the APA terms rules of agency organization procedure or practice as opposed to
`
`substantive rules.’’ Id. at 310 (cleaned up).
`
`8.
`
`The Administrative Procedure Act requires an agency, once a new rule
`
`has been finalized, to publish the final rule in the Federal Register “for the guidance
`
`of the public.” 5 U.S.C. § 552(a)(1). If the rule is a “substantive rule,” section 553(d)
`
`requires that the agency make the publication “not less than 30 days before its
`
`effective date.” 5 U.S.C. § 553(d). Congress enumerated only three limited
`
`exceptions to this requirement: (1) for “a substantive rule which grants or recognizes
`
`an exemption or relieves a restriction,” (2) for “interpretative rules and statements of
`
`policy,” and (3) “for good cause found and published with the rule.” 5 U.S.C.
`
`§ 553(d). The 30-day notice requirement protects “principles of fundamental fairness
`
`which require that all affected persons be afforded a reasonable time to prepare for
`
`
`
`
`
`6
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`Case 4:21-cv-00003-BMM Document 1 Filed 01/11/21 Page 7 of 15
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`the effective date” of a new rule “or to take other action which the issuance may
`
`prompt.” United States v. Gavrilovic, 551 F.2d 1099, 1104–05 (8th Cir. 1977) (cleaned
`
`up). Those actions may include petitioning the agency to reconsider the rule or to
`
`postpone its effective date while a legal challenge is pending. See 5 U.S.C. § 705.
`
`FACTUAL ALLEGATIONS
`9. On April 30, 2018, the EPA published in the Federal Register a notice
`
`of proposed rulemaking for a new rule, titled “Strengthening Transparency in
`
`Regulatory Science.” See 83 Fed. Reg. 18768, 18768 (proposed Apr. 30, 2018). The
`
`notice requested public comment on a rule that would “direct the EPA to ensure”
`
`that the scientific research “underlying its actions is publicly available in a manner
`
`sufficient for independent validation.” 86 Fed. Reg. 473 (describing the 2018
`
`proposal). As authority for the rule, the agency proposed relying on a variety of
`
`environmental statutes, such as the Clean Air Act, that it is charged with
`
`administering. See 83 Fed. Reg. 18773. The EPA published a supplemental notice of
`
`proposed rulemaking on March 18, 2020. See 86 Fed. Reg. 471–72; Strengthening
`
`Transparency in Regulatory Science, 85 Fed. Reg. 15396 (proposed Mar. 18, 2020).
`
`10. After signing a final rule on December 30, 2020, the EPA announced it
`
`on January 5, 2021, and published it in the Federal Register the next day. The final
`
`rule “describes how the EPA will determine the consideration to afford pivotal
`
`science of the EPA’s significant regulatory actions and influential scientific
`
`
`
`
`
`7
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`
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`Case 4:21-cv-00003-BMM Document 1 Filed 01/11/21 Page 8 of 15
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`information.” 86 Fed. Reg. 469. Specifically, the rule adds new provisions to the
`
`Code of Federal Regulations that limit, for the first time, the agency’s discretion to
`
`afford appropriate weight to studies that rely on non-public “dose-response data”—
`
`that is, “data used to characterize the quantitative relationship between the amount
`
`of dose or exposure to a pollutant, contaminant, or substance and an effect.” Id. at
`
`492 (to be codified at 40 C.F.R. § 30.2). The new provisions provide that the “EPA
`
`shall give greater consideration to pivotal science where the underlying dose-
`
`response data” are “available in a manner sufficient for independent validation.” Id.
`
`(40 C.F.R. § 30.5). When the underlying data are not so available, by contrast, the
`
`agency “will give them lesser consideration.” Id. The rule grants the Administrator
`
`only limited authority to “grant an exemption” to the requirement, “on a case-by-
`
`case basis,” for one of five specific, enumerated reasons documented in the record.
`
`Id. at 493 (40 C.F.R. § 30.7).
`
`11. Research relying on dose-response data is central to the EPA’s
`
`development of standards to protect public health. But, because that research
`
`provides information about threats to human health, it is likely to rely on confidential
`
`data from human subjects that cannot be publicly disclosed (or data that cannot
`
`otherwise comply with the rule). The new rule—in the words of a top EPA scientist—
`
`therefore “significantly limit[s] scientific studies the EPA considers in regulatory
`
`decision-making” by limiting the agency’s discretion to consider “[t]housands of
`
`
`
`
`
`8
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`
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`Case 4:21-cv-00003-BMM Document 1 Filed 01/11/21 Page 9 of 15
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`epidemiologic studies” that are critical to public-health standards but that “rely on
`
`personal information that, if disclosed, would violate laws that protect study
`
`participants.” Thomas Sinks, EPA’s scientific integrity in question over science rule, The Hill,
`
`Nov. 29, 2020.
`
`12.
`
`In contrast to the EPA’s initial notice of proposed rulemaking, the
`
`agency in its final rule relied “exclusively on its housekeeping authority” under the
`
`Federal Housekeeping Statute, 5 U.S.C. § 301, as authority for the rulemaking. 86
`
`Fed. Reg. 471–72. The agency deemed the rule as one that only “governs internal
`
`agency procedures for determining the consideration to afford various studies.” Id.
`
`at 472. Because it thus viewed the rule as “purely a procedural rule … within the
`
`scope of the EPA’s housekeeping authority,” the agency wrote that it was no longer
`
`“relying on any substantive environmental statutes as authority.” Id.
`
`13. Based on its view that the rule is purely procedural, the EPA also
`
`asserted that its rulemaking was “exempt from the … delayed effective-date
`
`requirements set forth in” section 553(d) of the APA. Id. Accordingly, it provided
`
`that the “final rule is effective on January 6, 2021”—its date of publication in the
`
`Federal Register. Id. at 470.
`
`14. Assuming “arguendo,” however, “that the delayed effective-date
`
`requirement of the Act applied,” the EPA stated that it “determined that there would
`
`be good cause, consistent with 5 U.S.C. 553(d)(3), for making this final rule effective
`
`
`
`
`
`9
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`
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`Case 4:21-cv-00003-BMM Document 1 Filed 01/11/21 Page 10 of 15
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`immediately.” 86 Fed. Reg. 472. The agency claimed
`
`that “immediate
`
`implementation of the rule, with its goals of ensuring transparency and consistency
`
`in how the agency considers dose-response data underlying pivotal science to be used
`
`in significant regulatory decisions and influential scientific information, is crucial for
`
`ensuring confidence in EPA decision-making.” Id.
`
`15. The APA creates a mechanism by which the public—within the period
`
`of 30 days or more required by section 553(d)—can petition an agency to “postpone”
`
`the effective date of a rule that has been published in the Federal Register but has
`
`not yet taken effect. See 5 U.S.C. § 705. The plaintiffs had intended to exercise their
`
`right to do so by asking the EPA to postpone the rule’s effective date to give it time
`
`to reconsider the rule. A rule that is already in effect, however, cannot be
`
`“postpone[d].” See Clean Air Council v. Pruitt, 862 F.3d 1, 9 (D.C. Cir. 2017); see Nat.
`
`Res. Def. Council v. Nat’l Highway Traffic Safety Admin., 894 F.3d 95, 113 (2d Cir. 2018).
`
`The EPA’s decision to make the rule effective immediately on publication therefore
`
`deprives the plaintiffs of the ability to seek postponement.
`
`CLAIMS FOR RELIEF
`COUNT ONE
`(ACTION UNDER THE ADMINISTRATIVE PROCEDURE ACT FOR A DECLARATION
`THAT THE EPA’S RULE IS UNLAWFUL AND INJUNCTIVE RELIEF TO PREVENT ITS
`ENFORCEMENT)
`16. This Court must judge the agency’s action “solely by the grounds
`
`invoked by the agency” when it acted. SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
`
`
`
`
`
`10
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`
`
`Case 4:21-cv-00003-BMM Document 1 Filed 01/11/21 Page 11 of 15
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`Here, the EPA relied “exclusively on its housekeeping authority” under the Federal
`
`Housekeeping Statute, 5 U.S.C. § 301, as authority for adopting the rule. 86 Fed.
`
`Reg. 471–72.
`
`17. The housekeeping statute provides specified Executive departments
`
`with authority only to adopt “procedur[al]” rules—not “substantive” ones. See
`
`Chrysler Corp, 441 U.S. at 309–10. But the EPA is not one of those departments. See 5
`
`U.S.C. §§ 101, 104. And because the EPA’s rule “binds … the agency itself with the
`
`‘force of law’” by limiting the agency’s discretion to consider scientific studies, it is a
`
`“substantive” rule. See CropLife Am. v. EPA, 329 F.3d 876, 883 (D.C. Cir. 2003). The
`
`agency therefore lacks authority to enact it. See United States ex rel. O’Keefe, 132 F.3d
`
`1252, 1255 (8th Cir. 1998).
`
`18. The agency’s adoption of the rule is therefore “in excess of statutory
`
`jurisdiction, authority, or limitations, or short of statutory right” as well as “arbitrary,
`
`capricious, an abuse of discretion, or otherwise not in accordance with law” in
`
`violation of the APA. 5 U.S.C. § 706(2)(A), (C).
`
`
`
`
`
`11
`
`
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`Case 4:21-cv-00003-BMM Document 1 Filed 01/11/21 Page 12 of 15
`
`COUNT TWO
`(ACTION UNDER THE ADMINISTRATIVE PROCEDURE ACT FOR A DECLARATION
`THAT THE EPA’S DECISION TO MAKE THE FINAL RULE EFFECTIVE ON
`PUBLICATION IS UNLAWFUL UNDER 5 U.S.C. § 553(d) AND INJUNCTIVE RELIEF
`TO PREVENT ENFORCEMENT UNTIL AT LEAST 30 DAYS FROM PUBLICATION)
`19. The APA mandates that “[t]he required publication or service of a
`
`substantive rule shall be made not less than 30 days before its effective date.” 5 U.S.C.
`
`§ 553(d).
`
`20. The EPA’s final rule is a “substantive rule” that is subject to the notice
`
`requirement.
`
`21. The EPA, however, made the rule effective immediately on its
`
`publication in the Federal Register, rather than at least 30 days later.
`
`22. None of the exceptions to section 553(d) applies. The EPA relies only
`
`on the exception for “good cause found and published with the rule.” 5 U.S.C.
`
`§ 553(d)(3). The agency claims that it has good cause to make the rule immediately
`
`effective here “because immediate implementation of the rule, with its goals of
`
`ensuring transparency and consistency in how the agency considers dose-response
`
`data … is crucial for ensuring confidence in EPA decision-making.” 86 Fed. Reg.
`
`472. But ensuring “confidence” in EPA decision-making is not the sort of emergency
`
`situation that justifies forgoing public notice. The agency’s justification just restates
`
`the rule’s purpose, which “cannot constitute a reasoned basis for good cause.” United
`
`States v. Reynolds, 710 F.3d 498, 512–13 (3d Cir. 2013). All the more so because it is
`
`
`
`
`
`12
`
`
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`Case 4:21-cv-00003-BMM Document 1 Filed 01/11/21 Page 13 of 15
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`the rule itself that threatens confidence in EPA decision-making by inhibiting the
`
`agency’s consideration of the best available scientific evidence.
`
`23. Given that the agency took more than two and a half years to finalize
`
`the rule, it cannot credibly claim an urgent need to make it effective thirty days
`
`earlier than statutorily required. “Good cause cannot arise as a result of the agency’s
`
`own delay.” Nat. Res. Def. Council, 894 F.3d at 114–15.
`
`24. The agency’s decision to make the rule effective immediately and its
`
`finding of “good cause” to disregard section 553(d)’s mandatory 30-day period are
`
`“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
`
`law” in violation of the APA. 5 U.S.C. § 706(2)(A).
`
`PRAYER FOR RELIEF
`The plaintiffs request that the Court:
`
`a. Declare that the EPA lacked authority to promulgate its final
`“Strengthening Transparency in Pivotal Science Underlying Significant
`Regulatory Actions and Influential Scientific Information” rule, 86 Fed.
`Reg. 469, because the agency lacked authority under the Federal
`Housekeeping Statute, 5 U.S.C. § 301, and exceeded any authority it
`could have had;
`b. Hold unlawful and set aside the EPA’s final rule, and enjoin enforcement
`thereof;
`c. Declare that the final rule violates 5 U.S.C. § 553(d) because its effective
`date is not at least 30 days after its publication in the Federal Register;
`d. Declare that the final rule’s effective date is 30 days after the date that the
`rule was published in the Federal Register;
`
`
`
`
`
`13
`
`
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`Case 4:21-cv-00003-BMM Document 1 Filed 01/11/21 Page 14 of 15
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`e. Enjoin enforcement of the final rule until at least 30 days after its
`publication in the Federal Register;
`f. Award all other appropriate relief, including attorneys’ fees and costs.
`
`
`
`January 11, 2021
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`/s/ Deepak Gupta
`DEEPAK GUPTA*
`JONATHAN E. TAYLOR*
`GREGORY A. BECK*
`LINNET DAVIS-STERMITZ*
`GUPTA WESSLER PLLC
`1900 L Street NW, Suite 312
`Washington, DC 20036
`(202) 888-1741
`deepak@guptawessler.com
`
`Counsel for Plaintiffs
`
`/s/Derf Johnson
`DERF JOHNSON
`STAFF ATTORNEY
`MONTANA ENVIRONMENTAL INFORMATION
`CENTER
`PO Box 1184
`Helena, MT 59624 (406) 443-2520
`djohnson@meic.org
`
`Counsel for Montana Environmental Information
`Center
`
`
`
`
`
`14
`
`
`
`Case 4:21-cv-00003-BMM Document 1 Filed 01/11/21 Page 15 of 15
`
`
`VICKIE L. PATTON
`BENJAMIN M. LEVITAN
`ENVIRONMENTAL DEFENSE FUND
`2060 Broadway, Suite 300
`Boulder, CO 80302
`(303) 447-7215
`vpatton@edf.org
`
`MATTHEW LITTLETON
`SUSANNAH L. WEAVER
`DONAHUE, GOLDBERG, WEAVER, &
`LITTLETON
`1008 Pennsylvania Avenue, SE
`Washington, DC 20003
`(202) 683-6895
`matt@donahuegoldberg.com
`
`W. ERIC PILSK
`SARAH C. JUDKINS
`KAPLAN KIRSCH & ROCKWELL LLP
`1675 Broadway, Suite 2300
`Denver, CO 80202
`(303) 825-7000
`epilsk@kaplankirsch.com
`
`Counsel for Environmental Defense Fund
`
` Pro hac vice applications pending
`
` *
`
`
`
`
`
`
`
`
`15
`
`
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