OVERNIGHT ENERGY: White House intervened to weaken EPA guidance on ‘forever chemicals’ | Environmental groups sue in bid to block ‘secret science’ rule | EPA preps for transition with unusual change to succession orders

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STEPPING IN AND TAKING OUT: Documents reviewed by The Hill show the White House intervened as the Environmental Protection Agency (EPA) was weighing a strict ban on imports of products that contain a cancer-linked compound, substantially weakening the guidance.

The guidance in question sought to limit potential exposure to a group of chemicals abbreviated as PFAS, used as a nonstick coating on products ranging from raincoats to carpets to cookware. They’ve been dubbed “forever chemicals” due to their persistence in the environment and the human body.

But as the EPA worked to limit the importation of any product with PFAS inside or out, the White House Office of Management and Budget (OMB) stepped in and significantly watered down the guidance in December, barring importation of only those products with a PFAS coating on the outside.

“It appears that OMB aggressively edited the guidance document to make it less protective of human health and the environment and to minimize the scope of a rule that’s intended to protect people from a very toxic class of chemicals,” said Eve Gartner, managing attorney of the toxic exposure and health program at Earthjustice. “It’s troubling that OMB is using its review authority to undermine the protectiveness of a rule that’s designed to protect consumers.”

Though widely used, PFAS has been linked with cancer and other ailments and has spurred a push by lawmakers on both sides of the aisle to limit use of some variations of the chemical.

With the White House’s changes, companies can still import products that have components covered with PFAS on the inside without alerting the EPA.

Environmental health advocates say that’s not good enough. 

“Products disintegrate over time, so if you have something with PFAS on the inside then you may be exposed over time. As it dissolves it gets into household dust, eventually it gets thrown away in a landfill and can leach PFAS and get into the environment that way,” said Melanie Benesch, a legislative attorney with the Environmental Working Group, which tracks PFAS contamination in the U.S. 

It’s not clear why the White House stepped in to weaken the guidance. 

The Office of Information and Regulatory Affairs (OIRA) within OMB typically reviews major regulations before they are finalized, but does not typically review guidance documents. An executive order from President Trump, however, allows the process. 

“This is an illustration of the harms of allowing OIRA to review the guidance because it allowed OIRA to inject political considerations that override the science and what career agency staff at EPA thinks is the best policy,” said Amit Narang, a regulatory advocate with Public Citizen.

That’s not the first time that’s happened under the Trump administration when it comes to PFAS.

Read more about the changes here.

SUIT UP: Green groups on Monday filed a lawsuit in an attempt to prevent a new rule limiting the Environmental Protection Agency’s (EPA) use of certain studies from taking effect.

The lawsuit takes aim at the EPA’s Strengthening Transparency in Regulatory Science rule, also known as the “secret science” rule, which restricts the use of studies that don’t make their underlying data public. 

The agency has billed the rule as a transparency measure, though its opponents argue that it will prevent consideration of important public health studies that can’t publish their data for reasons such as privacy. 

The suit, brought by the Environmental Defense Fund, the Montana Environmental Information Center and Citizens for Clean Energy, argued that the rule itself and its immediate effective date violate the Administrative Procedure Act. 

Specifically, it argued against the agency’s characterization of the rule as procedural, which would allow it to become effective when it is published in the Federal Register, arguing instead that the rule is “substantial” and should get a 30-day waiting period like other substantial rules. 

Deepak Gupta, one of the lawyers on the case, told The Hill that even though the effective date may sound like a minor procedural issue, it has “enormous consequences.”

“If the rule doesn’t go into effect immediately, we can ask the EPA to delay the rule and then challenge the rule and it might never go into effect,” Gupta said, adding that he’d expect the Biden administration to try to undo it.

The suit also argued that the 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.”

Read more on the suit here. 

TRANSITION: A new line of succession established at the Environmental Protection Agency (EPA) leaves an official who was slotted into a newly created high-ranking role just a month ago in charge on Inauguration Day.

Charlotte Bertrand, who until last month worked in EPA’s water office, will take over as Administrator Andrew Wheeler steps down and will be the lead official briefing Biden administration nominees.

It’s not unusual for agencies to update their succession orders, especially in the waning days of the administration when a transfer of power is imminent.

But some were surprised the handoff would go to a career employee who was so recently elevated.

A mid-December email to staff obtained by InsideEPA announced Bertrand was being promoted, the third such move for her over three years. 

“The charitable assumption was they wanted to have someone in a career position in Washington to be able to step in when the transition occurred. It was hard for them to acknowledge because Trump didn’t acknowledge he lost, but clearly someone was thinking about this at EPA,” Stan Meiberg, a former acting deputy administrator for the EPA during the Obama years, said of the agency’s December decision.

The succession order released by the White House late Friday leaves a number of officials in the line of succession above Bertrand, who is 11th on the list to take over in the event of a vacancy. 

But because every official above her is a political appointee, Bertrand will be the only one left at the agency on Jan. 20. The Trump administration has asked all political appointees to tender their resignation by Inauguration Day.

“It’s suspicious because they made that position for her. It’s not like she’s always been in some position in the line [of succession]. They made it for her a month ago,” said Gretchen Goldman with the Center for Science and Democracy at the Union of Concerned Scientists.

Meiberg said the order doesn’t concern him, mainly because it contains a provision allowing President-elect Joe Biden to appoint his own acting administrator to lead the agency.

“I think the most important section is one that was carried over from previous orders, Section 2, which allows the president to name someone to become acting administrator and that’s what’s happened in past experiences,” he said.

Read more on the order here. 

ODDS AND ENDS:

-Oil company British Petroleum will pause political contributions made through its employee political action committee for six months, joining a wave of other companies pausing some or all political spending in the wake of an attack by Trump supporters on the Capitol last week. 

-The Supreme Court on Friday agreed to take up refiner’s case challenging a 10th Circuit Court of Appeals decision to reject the Environmental Protection Agency’s decision to waive ethanol requirements.

That’s bad news for the ethanol producers that hailed the 10th Circuit decision, who argue “the Tenth Circuit got it right the first time.”

“We will continue to defend the court’s ruling and stand up for the renewable fuel producers and farmers who have been harmed by the granting of these waivers,” the Renewable Fuels Association, National Corn Growers Association, National Farmers Union and American Coalition for Ethanol all said in a statement.

The Association of Fuel and Petrochemical Manufacturers said the waiver are needed because “Congress made certain to provide small refineries with a lifeline to seek relief from untenable RFS compliance costs at any time, a provision that would be essentially eliminated by the 10th Circuit.”

WHAT WE’RE READING:

Oil companies lock in drilling, challenging Biden on climate, The Associated Press reports

Chinese Solar Companies Tied to Use of Forced Labor, The New York Times reports

Invasion of the hippos: Colombia is running out of time to tackle Pablo Escobar’s wildest legacy, The Washington Post reports

ICYMI: Stories from Monday…

Environmental groups sue in bid to block EPA ‘secret science’ rule 

BP employee PAC pauses contributions for 6 months

EPA preps for transition of power with unusual change to succession orders

Federal officials investigating after video shows ‘Trump’ etched into manatee’s back

Washington Monument closed through inauguration due to ‘credible threats’

Dow Chemical won’t donate to politicians who opposed election results

2020 tied for the warmest year recorded, EU says

White House intervened to weaken EPA guidance on ‘forever chemicals’