Deconstructing Regulatory Science

by Wendy Wagner
Rena Steinzor

June 19, 2018

Originally published on The Regulatory Review. Reprinted with permission.

The U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt recently opened another front in his battle to redirect the agency away from its mission to protect human health and the environment. This time, he cobbled together a proposed rule that would drastically change how science is considered during the regulatory process.

Opposition soon mobilized. In addition to the traditional forces of public interest groups and other private-sector watchdogs, the editors of the most prominent scientific journals in the country raised the alarm and nearly 1,000 scientists signed a letter opposing the proposal.

This essay offers a contextual explanation of the reasons why scientists, who are typically loathe to enter the regulatory fray, are so alarmed.

In normal times, when agencies must evaluate the scientific evidence that informs a significant policy decision about health or environmental hazards, they typically take four sequential steps:

  • First, they convene a group of respected scientists from within and sometimes from outside the agency that includes representatives of the disciplines needed to make the determination, such as neurologists, statisticians, pediatricians, and hydrogeologists.
     
  • Second, the scientists gather all the available scientific research and review it carefully, making informed judgments about which studies are more or less convincing.
     
  • Third, in a synthesis stage known as evaluating the "weight of the evidence," the scientists assess the evidence more holistically, writing up their findings and doing their best to be as clear and balanced as possible. The "weight of the evidence" approach embodies such basic, best scientific practices that when it is not followed, scientists question the integrity of the analysis.
     
  • Fourth, the agency typically subjects the scientific assessment and underlying work to some form of internal or external peer review, or both.

The gold standard for this process is set by the National Research Council (NRC) of the National Academy of Sciences (NAS), which provides scientific reviews for issues that can be highly controversial. But throughout the government, the process can be found, where it is duplicated, expanded, and tailored to the missions of agencies making health and safety decisions. For example, an even more elaborate version is mandated by the Clean Air Act for EPA to use when setting national ambient air quality standards (NAAQS).

When a scientific review suggests that a more stringent health or safety standard is justified and the agency proceeds to tighten its requirements, affected industry and deregulatory stakeholders generally oppose the rule. One of the first lines in their attack is to pick apart the foundational, scientific analyses. Beyond scrutinizing the scientific work in legitimate ways, some stakeholders take the additional step of engaging in an approach we refer to here as "deconstruction" of the evidence. This deconstruction involves ends-oriented, illegitimate attacks that take apart the scientific analyses bit by bit in an effort to discredit and alter the results. Deconstruction is accomplished through a myriad of techniques, including plucking individual, particularly unwelcome, studies out of the mix, undermining the validity of other studies for nonscientific reasons, encouraging the reconsideration of raw data using unreliable models, and adding research engineered to confound a finding of harm.

The recent Pruitt ...

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