OVERNIGHT ENERGY: EPA finalizes ‘secret science’ rule, limiting use of public health research | Trump administration finalizes rollback of migratory bird protections | Kerry raises hopes for focus on climate security at NSC

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STUDY UP: The Environmental Protection Agency (EPA) on Tuesday finalized one of its most controversial rules, limiting the types of studies the agency can weigh when crafting its policies.

The rule has been one of the top concerns for public health advocates and environmentalists who say it will restrict the EPA’s ability to consider landmark public health research and other studies that do not make their underlying data public.

Dubbed by former EPA Administrator Scott Pruitt as a way to battle “secret science,” the agency has billed the rule as a transparency measure.

But critics say it’s unnecessary for the agency to review spreadsheets full of sensitive personal health data or proprietary business information rather than evaluating the scientific underpinnings of the research itself.

So what does the agency have to say about it?

“Too often Congress shirks its responsibility and defers important decisions to regulatory agencies. These regulators then invoke science to justify their actions, often without letting the public study the underlying data. Part of transparency is making sure the public knows what the agency bases its decisions on,” EPA Administrator Andrew Wheeler wrote in an op-ed in The Wall Street Journal late Monday before the rule was unveiled.

The first version of the 2018 rule sparked major pushback — the 600,000 comments it elicited made it one of the EPA’s most commented-on regulations ever. Its merits were even questioned by the agency’s independent science board, who said the agency had not resolved how to protect sensitive data.

“Their own scientists said this is just a bad idea, and they said, ‘Well we’re doing it anyway.’ If it’s about better science, don’t you think the scientists might know something about that?” said Andrew Rosenberg, director at the Center for Science and Democracy at the Union of Concerned Scientists.

“They’re blocking epidemiological research during the biggest epidemiological crisis in the past 100 years.”

And how does it work, exactly?

Tuesday’s rule is the third iteration, a slightly narrower take than earlier versions by focusing on dose-response studies that show how increasing levels of exposure to pollution, chemicals and other substances impact human health and the environment rather than all studies. It would allow the administrator to make an exception for any study they deem important.

But rather than apply to just the agency’s rulemakings, the rule will affect all “influential scientific information” at the agency, a broad term that could exclude public health research as the agency issues guidance or takes other actions. 

Critics argue the rule takes a page from the book of the tobacco industry, which sought to undermine science linking its products to cancer.

“It’s a page ripped straight from the science denial playbook of the tobacco and lead paint industries. If capable of shame, the polluter toadies leading Trump’s EPA should be ashamed,” Sen. Sheldon Whitehouse (D-R.I.) said in a statement.

In the case of its latest rule, the EPA could block consideration of Harvard’s 1993 six cities study, which linked air pollution to premature death. It’s conclusions have formed the basis for many of the EPA’s air pollution rules.

Wheeler, who announced the rule at an event with the Competitive Enterprise Institute (CEI), a conservative think tank, said it would not block previous studies from being used. 

The rule, however, essentially creates various tiers for research. Studies with public data would get priority over those that don’t. 

Rosenberg said peer reviewers don’t need to look at raw data, and instead look at basic methods, statistics and results to see if they support the studies’ conclusion.

“Fundamentally what the tiering system does is substitute non-scientific criteria — availability of data — for weighing the study or deciding how important the study is. Whether the data is available or not has nothing to do with whether science is strong and whether it’s showing strong evidence of a health impact,” Rosenberg said, adding that he doubts members of the public will go through millions of lines of raw data to evaluate EPA’s work.

Read more about the rule here.

BIRD IS THE WORD: The Fish and Wildlife Service (FWS) has finalized a rule rolling back protections for migratory birds, according to a document that will be published in the Federal Register this week. 

The new rule changes the implementation of the 1918 Migratory Bird Treaty Act (MBTA) so that companies are no longer penalized for accidentally or incidentally harming or killing these birds. 

The MBTA has protected more than 1,000 different species of birds for more than 100 years by punishing companies whose projects cause them harm. 

The Trump administration has argued, however, that companies should only be punished for intentionally killing the animals, though it has admitted that relaxing these rules may cause companies not to carry out best practices that limit incidental bird deaths. 

The rule follows a 2017 legal opinion from Daniel Jorjani, the now-solicitor for the Interior Department, in which he argued that applying the rule to incidental or accidental harm “hangs the sword of Damocles over a host of otherwise lawful and productive actions” and “inhibits otherwise lawful conduct.”

That opinion was struck down in court this year. U.S. District Judge Valerie Caproni wrote that the “Jorjani opinion’s interpretation runs counter to the purpose of the MBTA to protect migratory bird populations.”

However, in a statement supporting the rule on Tuesday, Interior Secretary David Bernhardt pointed to a 2015 court decision that has supported the administration’s interpretation. 

“This rule simply reaffirms the original meaning and intent of the Migratory Bird Treaty Act by making it clear that the U.S. Fish and Wildlife Service will not prosecute landowners, industry and other individuals for accidentally killing a migratory bird,” he said. 

The MBTA played a part in the case against BP following the 2010 Deepwater Horizon oil spill. BP pleaded guilty to charges including a violation of the MBTA.

The company paid $100 million to support wetlands reservation and conservation as part of a settlement. 

An agency environmental impact statement published in November found that the rule changes would have “likely negative” effects on migratory birds. 

“Fewer entities would likely implement best practices…resulting in increased bird mortality,” that assessment said. 

Read more about the final rule here.

KERRYING CLIMATE INTO NATIONAL SECURITY: Security experts are hopeful that former Secretary of State John Kerry will use his special envoy role on the National Security Council (NSC) to focus not just on emissions reductions but the broader risks posed by climate change.

The first-of-its-kind position at the NSC has been branded as a sort of international climate czar who will be responsible for shepherding the U.S. through negotiations after President-elect Joe Biden rejoins the Paris climate agreement on Jan. 20.

But beyond the diplomatic realm, Kerry’s seat at the NSC table presents an opportunity to push for more robust planning around the national security impact of climate change.

“Some people see climate change as a long term threat and not an immediate issue we need to deal with,” said Erin Sikorsky, deputy director for the Center for Climate and Security, who joined the organization last month after serving for three years in the Trump administration as a deputy director on the National Intelligence Council.

“We need strategies for dealing with the current climate security risks that are already happening that the national security landscape in the U.S. will be dealing with in the next year to four years,” she added.

U.S. military facilities are already seeing the effects of climate change with sea level rise, hurricanes and wildfires. In 2018, storms racked up $9 billion in damages at just three stateside bases.

But far worse consequences could be yet to come.

Climate change is expected to disrupt agriculture and water supplies while increasing global tensions.

Security experts say the federal government needs to be planning for those international conflicts, both within and between nations, as well as the potential for climate refugees.

“The truth is there is no international system for dealing with the refugee climate crisis. These people do not get afforded the legally protected status of refugees,” said Andrew Holland, chief operating officer at the American Security Project, a Washington-based think tank.

That kind of disruption — whether it’s terrorist groups using climate-related economic insecurity and food shortages as a recruitment tool or countries fighting over water rights — “is a world in which the U.S. military is not powerful enough to keep the lid on all the global crises that are happening,” Holland said.

At the tail end of the Obama administration, the Pentagon and other agencies were asked to assess how climate change would impact national security. Since then, Democratic lawmakers have fumed that the Defense Department has done only a cursory review of climate risk during the Trump administration, failing to even mention the base damage from the 2018 storm season.

“Until President Trump put his heavy hand on the scales, there was quite a bit of work being done by various security apparatuses,” said former Rep. Denny Heck (D-Wash.), who, before retiring this year, sponsored a bill calling for a Climate Security Intelligence Center within the Office of the Director of National Intelligence.

The Biden administration could get the ball rolling again, and there’s hope Kerry could help integrate climate change into existing analyses, evaluating how it intersects and exacerbates other security risks.

Sikorsky gave the example of Russia, where the melting Arctic is expected to open new shipping passageways. Moscow is already reinforcing its military presence in the north as a way of protecting what they see as a domestic transport route.

Sikorsky, along with Heck, is among those who have called for additional climate-related offices within the NSC, a move she says could put a permanent focus on the issue and ensure climate is considered in a range of decisions across presidential administrations.

“With functional issues across the national security apparatus, you need senior champions in NSC and other places to make sure they’re paid attention to and focused on or otherwise they get shunted to the side,” she said. 

Read more about what Kerry could do here.

WHAT WE’RE READING:

Banks Blast Rule That Would Force Lending to Oil, Gun Firms, Bloomberg reports

Oil soars near $50 after OPEC and Russia agree to roll over production cuts, CNN reports

Massachusetts lawmakers send climate bill that would reduce state’s carbon footprint to Gov. Charlie Baker’s desk, MassLive reports

Janet Yellen owns fossil stocks. Does that matter? E&E News reports

ICYMI: Stories from Tuesday…

Trump administration finalizes rollback of migratory bird protections

Massachusetts to require 100 percent of car sales to be electric by 2035

EPA finalizes ‘secret science’ rule, limiting use of public health research

Kerry raises hopes for focus on climate security at NSC

Polar vortex shifting southward due to spiking temperatures around North Pole

FROM THE HILL’S OPINION PAGES:

From rhetoric to reality: Achieving climate justice, write Alice Kaswan, a law professor at the University of San Francisco and Shalanda Baker, a law professor at Northwestern University. 

Proven programs, not false hopes — engaging farmers in climate solutions, write Jeanne Merrill, the policy director with the California Climate & Agriculture Network and Chris Schreiner, the executive director of Oregon Tilth