April 30, 2018 Liz Borkowski, MPH 2Comment

Last week, EPA administrator Scott Pruitt announced a proposed rule that would dramatically shrink the pool of high-quality evidence EPA can use in regulations. Pruitt claims the rule will advance transparency, but it will really just make it harder to protect public health. Writing at the Natural Resources Defense Council blog, Jennifer Sass calls it the “Censoring Science Rule.”

The rule would require that EPA rulemaking use only studies for which the underlying data is publicly available. This might sound like a good idea, but it would mean ignoring the best available science when it involves human subjects who agreed to participate in research but not to have their personal information made available to the public.

The Atlantic’s Robinson Meyer reports, “Just about everyone involved in the rule-making process agrees that the rule targets a specific and foundational piece of environmental science: the “Six Cities” study, from the Harvard School of Public Health.” The Six Cities Study followed more than 8,000 people and found mortality from lung cancer and cardiopulmonary disease to be associated with inhalable fine particles. EPA has used the study’s findings to justify many air-pollution regulations over the years. If EPA weren’t able to consider it in rulemaking, polluting industries would face much looser limits on the amount and type of fine particles they could pump into our air.

Former EPA administrator Gina McCarthy told the Washington Post’s Juliet Eilperin and Brady Dennis that this kind of rule would have disqualified the federal government from relying on studies linking leaded gasoline to neurological damage. A more recently substantiated threat to children’s brains comes from the pesticide chlorpyrifos, which Pruitt announced the agency would not ban, a decision contrary to the advice of its scientists. When Vox’s Umair Irfan asked EPA about an example of where this new rule would matter, a spokesperson mentioned chlorpyrifos. The new rule won’t influence this particular decision, which Pruitt made last year, but it will give him a rationale for declining to regulate other pesticides in the future.

Tactics from the tobacco playbook
At The New Republic, Emily Atkin talks to renowned tobacco researcher Stanton Glantz about the roots of this tactic to limit the role key public-health studies can play in regulations:

Glantz, now a professor of tobacco control at the University of California San Francisco, was among the first scientists in America to publicly warn about those dangers. … in 1995, Glantz and other researchers unearthed documents showing that the tobacco industry had known for 30 years that nicotine was addictive and smoking caused cancer.

… Steve Milloy, a paid advocate for the tobacco giant Phillip Morris and coal company Murray Energy … has long rejected established science, arguing against the overwhelming body of peer-reviewed literature linking secondhand smoke to cancer, human activity to global warming, and air pollution to premature death. He calls these bodies of research “junk science,” primarily because they are based on human health data, which is confidential due to privacy laws. Though hundreds of scientists have approved these studies through extensive peer review, Milloy has said the results aren’t trustworthy, and has sought to disqualify them from being used to make regulations.

Glantz says this is a tactic originated by the tobacco industry, which in the 1990s was getting increasingly frustrated by the number of studies linking their product to health problems. “They realized that, rather than fighting every single study that came out linking them to cancer, if they could get the rules of evidence changed, they wouldn’t have to worry about it,” Glantz said. So, tobacco companies came up with a reasonable-sounding set of rules for “transparency” in research, and created an organization called The Advancement of Sound Science Coalition to advocate for them.

The U.S. has succeeded in driving down rates of smoking — and the diseases associated with it — because lawmakers and regulators have resisted many (though not all) of the tobacco industry’s efforts to hobble the regulatory process. Will we let other polluting industries place studies on their products’ harms off limits to regulators?

Selective “transparency”
The Union of Concerned Scientists’ Gretchen Goldman points out that the rule gives the EPA administrator the ability to be selective in the application of its requirements:

Tucked into the policy proposal is a provision that gives the EPA administrator notable power over how this would be implemented. He or she gets to decide what information counts and what does not. The administrator can “exempt significant regulatory decisions on a case-by-case basis.” This is a loophole big enough that we could drive a tractor-trailer through (perhaps one that doesn’t meet modern emissions standards?). By allowing the EPA administrator to exempt entire decisions, or just singular studies, this allows political appointees to pick and choose what science is “acceptable” when making (what should be) science-based policy decisions. That politicizes the evidence that can be considered or excluded for arbitrary reasons, making it easier for the EPA administrator to insert politics into existing science-based processes at the EPA.

And, despite all its claims to value transparency, Pruitt’s EPA has not been forthcoming about this proposal. The National Association of Science Writers wrote to EPA to protest the agency’s refusal to discuss the proposal with reporters after it limited pre-release information to “a handpicked, partisan outlet.” Huffington Post’s Alexander C. Kaufman wrote of the release event, “In a twist for an event billed as a step forward in transparency, Pruitt took no questions, and the EPA did not invite reporters from major news outlets to attend.”

Prior to the rule’s release, Yogin Kothari writes, the Union of Concerned Scientists obtained through a FOIA request documents that “provided a window into the considerations of many agency officials, and showed that a policy that would be a fundamental shift in the way EPA uses science, was driven exclusively by political appointees, not scientists.” Like many FOIA’d documents, these were available at an online portal — but then after several news outlets reported on them, EPA removed them. (UCS has made the majority available online.)

Senator Tom Carper (D-Delaware) and his Democratic colleagues on the Environment and Public Works Committee have written to EPA requesting more information about the proposed rule. The letter states:

Such a policy would likely violate several laws that mandate the use of ‘best available science,’ including the Toxic Substances Control Act and Safe Drinking Water Act because it would require EPA to ignore some of the ‘best’ scientific studies. Courts have explained that ‘best available science’ means that agencies ‘should seek out and consider all existing scientific evidence relevant to the decision’ and ‘cannot ignore existing data.’

If this rule is finalized, it will likely face court challenges. First, though, the public has until May 30th to submit comments. I’ll be writing to say that this rule will be disastrous for public health and urge the agency to withdraw it.

Update, 6/6: After receiving thousands of comments urging the agency to allow for more public input, EPA has extended the comment period deadline to August 16 and scheduled a public hearing for July 17.

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