WASHINGTON — President Trump has made rolling back environmental regulations a centerpiece of his administration, moving to erase Obama-era efforts ranging from landmark fuel-efficiency standards and coal industry controls to more routine rules on paint solvents and industrial soot.
But all along, scientists and lawyers inside the federal government have embedded statistics and data in regulatory documents that make the rules vulnerable to legal challenges. These facts, often in the technical supporting documents, may hand ammunition to environmental lawyers working to block the president’s policies.
Trump administration loyalists see in the scientists’ efforts evidence that a cabal of bureaucrats and holdovers from previous administrations is intentionally undermining the president and his policies. And there can be little doubt that some career scientists are at odds with the president’s political appointees.
But current and former federal employees who work on environmental science and policy say their efforts to include these facts are a civic and professional duty, done to ensure that science informs policy outcomes and protects the public. Some are trying to preserve regulations they spent years of their lives writing.
“You work hard on stuff that is good for the world, for a long time, for years, and then it’s trashed, and you’re told you have to participate in trashing it,” said Kathy Kaufman, a clean-air policy expert who retired from the Environmental Protection Agency in 2017 after 29 years. “You’re in a difficult position and you know you have to figure out what to do.”
Examples of employees figuring out what to do were pointed out in interviews with over two dozen former and current employees.
Take fine soot. The current rules, written during the Obama administration, are now up for review, and Trump administration appointees do not want to further tighten controls on the industrial pollutant, which contributes to lung disease. But in a draft analysis of the soot regulations, scientists included data showing that by tightening the existing standard by 25 percent, as many as 12,150 lives could be saved a year. That data may be a powerful weapon for promised legal challenges to the stay-the-course soot rule.
Climate change is another case in point. In 2018, when the EPA proposed reversing an Obama-era rule to limit climate-warming coal pollution, civil servants included analysis showing that by allowing more emissions, the new version of the rule would contribute to 1,400 premature deaths a year. Environmental lawyers plan to use that analysis to challenge the rule when the first court filings are due April 3.
And this winter, as Trump administration officials worked on a rollback of Obama-era fuel economy standards, political appointees found themselves at odds with their career staff, combing through thousands of pages of analysis to find what Thomas J. Pyle, a Trump campaign adviser in 2016, called “trip wires that EPA staffers were setting” in their work. There is no accusation, however, that any data was false or that EPA employees were engaged in scientific misconduct.
To Trump allies like Pyle, environmental controls have long been at odds with commerce, and after eight years under former president Barack Obama, the imbalance toward regulation was in need of a corrective. Civil servants are supposed to advance the policies of the elected officials that employ them, Pyle said, and “if you don’t like the person serving, then you should leave.”
But, just days after the 2016 election, Gina McCarthy, the outgoing head of the EPA, gathered agency employees and implored, “Keep your asses in your seats.”
Steven J. Milloy, a member of Trump’s EPA transition team, echoed Pyle. “It’s been obvious since the beginning of the Trump administration that the career staff is sabotaging the rulemakings, deliberately seeding them with numbers that can help the enviros sue.”
The incoming president had campaigned on a promise to dismantle their agency and reverse their highest-profile regulations, and McCarthy, who now heads the Natural Resources Defense Council, said she understood “they would be asked to do things that they may not like.”
But, she told them, with “their understanding of the issues, the science, the law, if they put truth in there, it will matter.”
Some EPA career employees, speaking on condition of anonymity because of the sensitivity of the matter, said they saw an opportunity last year to bring science to bear as they conducted a legally mandated review of the 2012 regulation of industrial fine soot emissions. Trump’s political appointees signaled they did not want to tighten the rule, which would require oil refineries and coal plants to install costly pollution controls or even shut down some operations.
But EPA scientists who reviewed the health data concluded the current rule was still killing people and wanted their warnings made public.
So on Page 181 of a draft 457-page scientific risk assessment, they placed critical data points. The scientists estimated that the current standard, which allows for 12 micrograms of fine soot per cubic meter of air, is “associated with 45,000 deaths” annually. In a separate paragraph, the scientists wrote that if the rule were tightened to 9 micrograms per cubic meter, annual deaths would fall by about 27 percent — or 12,150 people a year.
“Those are stunning numbers,” said Patrick Parenteau, a professor of law with the Vermont Law School. “If the Trump administration rejects this and does not change the rule, I don’t know what the legal rationale could be.”
The department’s leaders rejected the staff’s finding. An unpublished draft of the EPA’s upcoming soot rule, viewed by The New York Times, proposes leaving the current standard in place. The EPA administrator, Andrew Wheeler, placed “little weight on quantitative estimates” of the mortality risk associated with fine soot pollution, the draft says.
A final version of the report, published in January to preview the still-unpublished rule, does say the rule as it stands contributes to 45,000 deaths annually, but it also says only that tightening it would reduce “health risks,” not deaths.
An EPA spokeswoman, Corry Schiermeyer, said the numbers inserted into the draft report should not be given much weight.
“Draft documents of any kind are preliminary by their very nature, with the content subject to change based on internal reviews, scientific peer review, interagency review, and public notice and comment,” she said.
But lawyers say the data in the September draft may have proved useful for environmental lawyers.
“This document represents the best science and scientific judgment that these particles are deadly at the current level, so judges will give great weight to that science,” said John Walke, a lawyer with the Natural Resources Defense Council.
Walke said that he learned from EPA employees that the scientists had made sure those numbers were published in the document.
“People were stunned that this document was even allowed to come out,” he added.