The Science Community Must Fight Attacks on Science-Based Regulations
By Andrew Rosenberg, Director of the Center for Science and Democracy, Union of Concerned Scientists
It is easy in the day-to-day work of science to miss the struggle now being waged in Washington over the role science plays in crafting health and safety protections for America. But that struggle is heating up and the outcome matters not only for the science community but for the country. The Center for Science and Democracy at UCS, and our Steering Committee of eminent scientists and public servants, are asking you to join the fight in a Policy Forum article published in Science May 29th (login required).
Cleverly named battles
Every year, thousands of scientists in all disciplines take part in the process of advising our government concerning the current scientific evidence and the best interpretation of that evidence on issues ranging from clean air and water to worker safety, product safety, and environmental impacts, to name only a few. It is part of our chosen careers—part of our public service. I believe my service on advisory panels and committees, program or proposal reviews, and other activities is important and in many ways an honor, though I admit it’s a lot of work. But then, I also believe that the government should be in the business of protecting public health and safety and the environment. The government should protect the public interest and public-trust resources like our air, water, and oceans.
Today, the very process of bringing science into public policy is under a concerted and well-funded attack that may just succeed if we don’t raise the alarm and fight back. To understand what’s happening, consider how hard it is to argue against the principles of health and safety protections themselves. No politician wants to argue against clean air, or child safety. Indeed no politician wants to admit that he or she is undermining the role of science. Attacks on the process under the guise of reform, however, avoid such problems and largely evade notice. Those who advance this anti-regulatory agenda say they want greater accountability and transparency in the advisory process—both laudable goals. And the names of the bills similarly reflect those goals: The Secret Science Reform Act, the Regulatory Accountability Act, the Regulations from the Executive in Need of Scrutiny Act, the EPA Science Advisory Board Reform Act, the Sound Science Act.
But just like shopping malls and housing developments—Quail Hollow, Partridge Run, Deer Meadow, Green Pastures—these bills are named for what they just destroyed.
With the exception of the Sound Science bill, not introduced in the current Congress, the bills named above have either already passed the House or soon will pass that chamber, and are now before the Senate. They employ four tactics that undermine the role of science: 1) replace agency judgement based on science and statutory criteria with a political judgement in Congress with no set criteria or timeline; 2) make procedural changes that make it virtually impossible to provide science advice in a timely manner; 3) restrict the types of science that agencies may rely on; and 4) change the composition and rules for advisory panels to give industry greater influence. Some of the bills use more than one of these tactics. And other attacks on public health, safety and environmental protections now contain much of the same language.
Political influence instead of science
The Regulations from the Executive in Need of Scrutiny (REINS) Act would require that any regulation with an annual impact of more than $100 million be positively affirmed by both houses of Congress within 70 days. If not, the regulation cannot go into force. Note the bill says nothing about benefits of a regulation, only costs. At the moment, both houses have been unable to agree on authorizing military action, immigration rules, transportation funding, and the list goes on.
Under current law, an agency must propose a regulation, take public comment multiple times, seek science advice, and justify the regulation based on the statutory requirements, the science, the costs and benefits, and other criteria as laid out in the law. The agency can and inevitably will be challenged in court, perhaps multiple times. I know this because I used to have a leading role in NOAA managing marine resources.
Under the REINS Act, none of that applies. Congress doesn’t need to justify the science basis for its decision and can’t be challenged on that basis. In fact, such a Congressional decision does not even need to be justified as meeting the intent of the law the regulation was proposed under in the first place! The standard of the REINS Act seems to be whether members, and their key influencers, like a particular regulation.
The same mechanism is now proposed to apply to listing decisions under the Endangered Species Act and may well appear in other legislation going forward. Separate from the REINS Act itself, a bill was proposed to create a Select Committee of House and Senate to do the same thing—impose congressional review of regulations.
Confounding science advice with new procedures
In meeting their statutory mandates, agencies must use the best science available and go through an extensive public process laid out in the Administrative Procedure Act and other laws. By adding additional steps to that process, everything slows down and regulations are put in place more slowly. The Regulatory Accountability Act adds at least 70 new steps to the regulatory process, including special formal hearings on cost-benefit analyses that are structured to allow a cross-examination of the agency, not just public comment. The Sound Science Act requires all scientific findings to be subject to public comment, each time a new finding is considered in the advisory process. That could result in essentially an infinite round of public comment. And the Science Advisory Board Reform Act requires the Board to not only solicit public comment on the science (and it prohibits the placing of time limits on the comment process), but also to respond to every “significant” comment in writing, separate from agency response to comment on rule-making that is now required. This is a huge additional burden on the board and again is designed to slow down the process.
Catch-22
It may not seem like a big deal to introduce requirements that all data, methods and models used as a basis for regulation be publicly available, as called for in the Secret Science Reform Act. After all, the Union of Concerned Scientists consistently supports transparency in government (and business!).
As is often the case, however, the devil is in the details. The bill states that the EPA may not move forward with a regulation unless everything is publicly available. It goes on to state that nothing in the bill requires the waiver of existing confidentiality provisions for businesses, individual researchers, or institutions. In other words, EPA may not make anything public that isn’t already so. In many public health studies and other surveys, participants are assured their data will be held in confidence and only be published in summarized results. Businesses, too, hold rights to keep some information confidential as do individuals with intellectual property rights.
The net effect is that the EPA may not regulate unless they can make, for example, the raw data available from a public health study—but they are not allowed to make that data available, therefore they may not regulate. Catch-22.
Through the looking glass
Science advisory boards already include some scientists who work in industry, and some from the states and tribes. But, according to the Science Advisory Board Reform Act, not enough of them. Under the rationale of this proposed legislation, industry scientists are unfairly excluded simply because they may have financial conflicts of interest. On the other hand, academic scientists should not be allowed to talk about their own work, unless it is published already, and in the House bill, must not serve if they have held an EPA grant in the last three years because they would be biased in favor of the agency. This is the Alice in Wonderland version of conflict of interest—industry is objective but academia is conflicted. Conflict of interest and disclosure is a serious issue, but this is not a serious remedy to improve the process.
Further, the bill requires a set quota for state, local and tribal government representatives on the Board. But science advisory boards are never meant to be representative bodies. Members serve in their capacity as individual experts on the subject matter experts, not as representing specific interests. The emphasis should always be to solicit the best possible scientific advice, not to heed some formulaic requirement for representation of different entities.
Improving the process: can the bills be fixed?
There are undoubtedly improvements that can be made in the science advisory process and in science-based regulations. Disclosure of conflicts of interest, making agency work more transparent, encouraging more scientists to participate and making sure that we are preparing more scientists to engage in the public policy process more effectively are just some of the efforts that merit attention.
Do these bills do that? No. Can they be modified in order to make positive change? I think not, because they are based on the wrong premises. All of these proposals seem to come from starting premises that regulatory agencies and the scientists who work with them have some hidden agenda and that agencies over-reach their mandates and grab for control—and that industry needs to have more influence in the process.
Further, the bills focus extensively on cost-benefit analyses but say little about the benefits side. Sure, industry must bear some of the cost of public health, safety and environmental protections, because industry actions cause many of the potential impacts. But the benefits of cleaner air, water, better worker and public safety are the reasons for the laws in the first place. And they have been substantial. If anyone would like to experience what some of our country would be like without the Clean Air Act, visit Beijing.
Get in the fight
Scientists and other concerned citizens need to fight off these attacks. Not to defend the status quo, but to call out and oppose proposals that don’t have the public interest as their goal. Elected officials need to hear from scientists and other constituents who believe that science-based public health and safety protections are a critical part of the work of government, and that advancing the role of independent science in the process is the best way to ensure these protections are based on the evidence, not political influence. Creating barriers to that science advice is the wrong way to go. Any of the proposals described above have the potential to do long-term damage to the country. We can’t allow that to happen in our democracy without mounting a strong public response.