It’s no secret that EPA’s leadership under the Trump administration has pursued a reckless (and in many cases unlawful) deregulatory agenda. However, in their rush to dismantle environmental regulations put in place by the Obama administration, deregulatory zealots like Scott Pruitt, Bill Wehrum, and Andrew Wheeler have faced an intractable obstacle: mainstream science. The Obama administration relied on mainstream science and used longstanding benefits accounting practices to justify rules that resulted in significantly greater benefits than costs. Logically, rescinding those rules would then impose greater costs than benefits. That’s a tough place to be for the Trump administration, which professes to be concerned about the costs of regulation.
EPA’s response? Undermine or ignore the mainstream science that gets in the way. EPA proposals under this administration have drawn criticism and warnings from scientists, academics, and policymakers including four former EPA administrators (three of whom served under Republican administrations) who emphasized the importance of science and expressed concern about the Agency’s retreat from science at a recent House Energy and Commerce Committee hearing. In particular, a deceptively named proposal called Strengthening Transparency in Regulatory Science (or more appropriately the “Censored Science Rule”) has received strong criticism.
The SAB Steps Up. With concerns raised among many in the scientific community, over the summer EPA’s own Science Advisory Board (“SAB”) decided to weigh in on this proposal. The SAB was created under the Environmental Research, Development, and Demonstration Authorization Act of 1978 to review scientific and technical information used by EPA as the basis for regulation and generally advises EPA on broad scientific matters. In a June meeting (and despite being stacked with experts hand-picked by the Trump EPA) the panel expressed concern about EPA’s actions.
EPA’s Censored Science Rule received a lot of attention from SAB members, who expressed concerns about the content as well as the process of putting forward the rule. On its terms, the proposal could actually prevent EPA from considering important scientific studies if the raw data used in the studies is not “publicly available.” Most human health data – including the data underlying critical studies linking fine particulates to disease and early deaths – are not and cannot be made available due to privacy requirements.
When confronted with criticism about this aspect of the Censored Science Rule, the Trump EPA’s response has been to point out that the Administrator gets to decide and could include those studies. But the Agency appears oblivious or unconcerned with the obvious problem this creates. Implementing a blanket exclusion while vesting power in the Administrator to let some otherwise excluded studies in would allow a political appointee to cherry pick scientific studies based on political preference rather than scientific value or relevance.
While Administrator Wheeler stated in his comments to the SAB that he had made no final decisions on the rule, which is a leftover from his predecessor Scott Pruitt, he also insisted it was important to move forward. But why? There is no statutory requirement or court order compelling EPA to take this action at all, much less on a schedule that leaves little time for rigorous review. Indeed, the proposal’s restrictions can be considered at odds with the Agency’s mandate to use the best available science in its efforts to improve and preserve the environment and public health. Listening to the nearly unanimous opposition from mainstream scientific and academic organizations who have suggested EPA drop the rule entirely is still an option for the Agency.
Full SAB Review. Significantly, the SAB voted in June to do a full review of the Censored Science Rule. While Wheeler had only asked for the SAB’s input on how to deal with confidential business information and personally identifiable information, the SAB decided to conduct its own review of the substance of the proposal. A serious scientific review should expose the significant flaws in this proposal.
Indeed, Administrator Wheeler’s letter to the SAB before its June meeting displays his dismissive attitude toward science. He emphasized that EPA’s decisions are merely “informed by scientific considerations” and included a lengthy citation emphasizing that the SAB’s role is advisory only. This EPA clearly intends to subordinate the SAB (and science more generally) to the administration’s policy whims.
An Unreasonably Vague Proposal. On August 27, the SAB had a consultation by teleconference with EPA on the Censored Science Rule, where members again expressed concern, particularly about the lack of information from EPA on how the Agency’s proposed rule would actually work and how it would affect the use of science at EPA. EPA’s representatives were mostly vague and noncommittal about the rule, which is alarming considering the Agency is planning to finalize a rule this year. However, the suggestions about what to do about this lack of information varied widely. One SAB member understandably suggested EPA should fill in the gaps in this proposal before the SAB reviews it. Another member (perhaps displaying a tenuous grasp of the SAB’s role) suggested that the SAB could help EPA fill in those gaps. This is an outlandish suggestion, as it is not the SAB’s job to draft policy to make up for EPA’s incompetence.
The fact that the SAB has had so much difficulty deciphering what the proposed rule would do should be a warning to EPA about the rule’s legal vulnerability. The terms of the proposal were so vague that they failed to provide the public an opportunity for meaningful comment, as required by the Administrative Procedure Act. Furthermore, if EPA attempts to finalize a rule, it would need to be a logical outgrowth of the proposed rule to withstand a legal challenge. EPA would have the heavy burden of convincing a court that the final rule is a logical outgrowth of an incoherent proposal that even the highly qualified experts on the SAB have struggled to understand.
SAB Chairman Michael Honeycutt also recently acknowledged that the SAB would not meet the Sept. 30 deadline board members had set for completing review of several rules including the Censored Science Rule. This raises the odds that the SAB will not be able to finish its review before EPA finalizes the rule or that the Agency will be too far along in the process to properly consider the SAB’s input. Furthermore, the SAB’s membership is set to change at the end of the month, with holdovers from the Obama administration being replaced.
It’s ironic to see a proposal supposedly concerned about transparency become such an opaque mess. If EPA is truly interested in improving the quality of the science it relies on, the Agency should scrap this proposal and seek suggestions from the scientific community rather than moving forward with a proposal that faces widespread opposition. The current proposal represents an unlawful step backward for sound science, which must remain at the core of EPA’s work to protect human health and the environment.