Last year, many of us spoke out forcefully against a horrible EPA proposal that would allow the agency to ignore important studies when regulating, on the pretext of increasing transparency. Nearly 600,000 individuals and organizations submitted public comments, and many of these criticized the agency for having failed to do its homework in making the proposal. Rather than using the extensive criticism to engage in a more thorough and appropriate process — or, as many of us recommended, scrap the proposal altogether — EPA has apparently made it more far-reaching and disastrous for public health.
The “Strengthening Transparency in Regulatory Science” rule would require that studies informing EPA’s regulations have their raw data made publicly available. This might sound like a good thing, but it would force (or allow) the agency to ignore some of the most important research we have on the public health impacts of air pollution and other hazards. Scientists who enroll people in research studies nearly always do so with the assurance that they will keep participants’ identifying information confidential. Making large datasets public, even when participants names and addresses are removed, will almost inevitably lead to the identification of some individual participants. That not only violates the agreements researchers made with those individuals, but makes it much less appealing for people to participate in future studies.
The proposed rule allows the EPA Administrator to waive the requirement for certain studies, but doesn’t specify criteria for granting such waivers. I certainly don’t trust former coal lobbyist Andrew Wheeler to make sure EPA can consider important studies on air pollution when setting air quality standards.
It doesn’t make sense for an agency that protects public health to prevent its regulatory process from considering high-quality research that addresses important public-health questions. It does make sense for an agency that’s looking for excuses to limit and reduce regulation of polluting industries to adopt such a rule, though. Genna Reed of the Union of Concerned Scientists explains that this rule represents the fulfillment of a long campaign started by the tobacco industry:
The idea that government science is secretive and needs to be made more public is a premise devised by tobacco industry lobbyists as far back as the mid-1990s. In a memo to RJ Reynolds Tobacco Company, lobbyist (and Trump administration transition team member) Christopher Horner wrote about the need to create “required review procedures which EPA and other federal agencies must follow in developing extra-judicial documents” and constructing “explicit procedural hurdles the Agency must follow in issuing scientific reports” because “our approach is one of addressing process as opposed to scientific substance.”
This wasn’t just about tobacco. These lobbyists were thinking about EPA’s efforts to address everything from mercury emissions, hazardous waste, and dioxins, to air pollution. They knew that the science showing harm from a range of industrial products and processes would result in stronger protections and the only way to stop it would be to break the process.
Going from bad to worse
The comment period for the proposed rule closed in August 2018, with 597,083 comments received. By law, EPA must consider all these comments as it creates a revised rule, and the revised rule will enter into effect after publication in the Federal Register (although the rule will almost certainly face lawsuits, and a court might block the rule from taking effect while it reaches a decision).
Last week, the Lisa Friedman at the New York Times obtained a draft of a supplement to the proposed rule. (This isn’t the revised rule, but something to “clarify” the original proposal.) According to this draft, it would apply to even more studies than fell under the scope of the original proposal, and the rule wouldn’t just apply to future regulations; it would allow the agency to undo existing ones. In other words, it wouldn’t just prevent us from strengthening current regulations and addressing hazards not regulated before; it would actually let EPA undo the rules that have let us breathe cleaner air, drink cleaner water, and drive down rates of childhood lead poisoning. Friedman writes:
For instance, a groundbreaking 1993 Harvard University project that definitively linked polluted air to premature deaths, currently the foundation of the nation’s air-quality laws, could become inadmissible. When gathering data for their research, known as the Six Cities study, scientists signed confidentiality agreements to track the private medical and occupational histories of more than 22,000 people in six cities. They combined that personal data with home air-quality data to study the link between chronic exposure to air pollution and mortality.
But the fossil fuel industry and some Republican lawmakers have long criticized the analysis and a similar study by the American Cancer Society, saying the underlying data sets of both were never made public, preventing independent analysis of the conclusions.
The Times published Friedman’s scoop two days before the House Committee on Science, Space, and Technology held a hearing entitled “Strengthening Transparency or Silencing Science? The Future of Science in EPA Rulemaking.” UCS’s Michael Halpern posted some key takeaways from the hearing, including the fact that even the Republican-invited witness, Brian Nosek of the Center for Open Science, agreed the rule should not move forward as written. Halpern described the wide range of entities with concerns about the proposal:
Many, many interests—from the military to the nation’s top scientific organizations—have significant problems with the rule. Oversight Subcommittee Chair Mikie Sherrill brought up concerns that the Department of Defense had with the original rule. Other members of Congress brought up the sustained and universal opposition of scientists and scientific organizations to the rule. They repeatedly suggested that EPA get advice from the National Academies, which it has not yet done. And see this great letter from Flint pediatrician Mona Hanna-Atisha about how EPA’s approach to science impacts vulnerable communities the most that was introduced into the record by Congresswoman Haley Stevens. All the EPA witness could say is that comments are still being considered.
One sliver of hope is that the version Friedman obtained might not be the one EPA ultimately publishes. The Washington Post’s Brady Dennis writes:
On Tuesday, the EPA took issue with parts of that report, saying in a news release that the Times had relied on a “preliminary” draft, and not the “final text” sent to OMB for review. In particular, the agency insisted that the proposal would not apply retroactively to existing regulations and that it would include measures to protect confidential personal information from public release.
The agency, however, declined to share a copy of the updated proposal or describe how it had changed until the interagency process is completed and a public comment period begins.
I’m sure I’m not alone in my skepticism when I suspect that the Trump administration’s assurances about its actions having limited impact aren’t something I can have much faith in. Anyone who cares about public health should be concerned about how EPA is fulfilling the dreams of the tobacco and fossil-fuel industries.