Silly “Secret Science” Scheme Slithers to the Senate

by Rena Steinzor
James Goodwin

July 28, 2014

It must be something of a game for them.  That’s really the only explanation I can come up with for why the antiregulatory members of Congress seem so intent on competing with each other to see who can introduce the most outlandish, over-the-top anti-EPA bill.  If it is a game, then its best competitors would have to include Senators John Barasso (R-WY) and David Vitter (R-LA) who earlier this month introduced S. 2613, the Secret Science Reform Act of 2014.

If this bill sounds familiar, that’s because it is identical to one that was introduced in the House in February by Rep. David Schweikert (R-AZ).  At the time, a group of CPR Member Scholars sent a letter to the Subcommittee on the Environment of the House Committee on Science, Space, and Technology, of which Representative Schweikert is chair, to explain their concerns in anticipation of the subcommittee’s legislative hearing on the bill.  The bill, which the House Science Committee approved along party lines and now awaits full floor consideration, purports to prohibit the Environmental Protection Agency (EPA) from taking any action that is informed by scientific or technical information—including issuing new regulations—unless the EPA affirmatively makes all of that scientific or technical information fully available to the public.  Since the EPA’s mission is necessarily science-driven, this bill would pretty much cover everything the agency does.

On its face, the bill sounds eminently reasonable.  After all, science is a discipline which trades on transparency; without it, one of the touchstones of the scientific process—reproducibility—would potentially be defeated.  When science is used in the service of policymaking, then separate democratic concerns further reinforces the demand for transparency.

But when you dig a little deeper, you see that the issue of transparency is not as simple as the bills’ sponsors would have you believe.  You also see that the bill has nothing to do with good science or good government and everything do with advancing politicized attacks on the EPA and spinning baseless allegations and innuendo into an anti-EPA narrative ripe for repetition and reverberation in the rightwing echo chamber.

As the CPR Member Scholars’ letter explains, the bill conveniently disregards the real transparency problem in EPA science:  the aggressive use of “confidential business information” claims by industry to shield from public view information about the health and environmental harms of thousands of pesticides and chemicals that are used every day, nearly everywhere.  Instead, the bill focuses on publically available research, nearly all of which has been peer reviewed.  Of course, some of the underlying data for this research have not been publicly released for good reasons, such as the need to protect the privacy of study participants.  To make matters worse, the bill would place enormous burdens on the EPA to gather all of these data, even when they are readily available.  Complying with the bill’s transparency requirements would waste scarce agency resources and needlessly delay important environmental and public health safeguards.

The CPR Member Scholars’ letter further explains that the bill would enable regulated industries to game the system.  If a company has conducted internal research showing that one of its products is potentially harmful, that company could effectively prohibit the EPA from considering this research in its regulatory decision-making by simply denying the agency access to the underlying data.  Under the bill, the EPA could not base a regulation on the research without the underlying data, and without the research, the EPA would likely be left without a scientific basis for issuing the regulation that would survive judicial review.  As the CPR Member Scholars’ letter puts it, “Since the data underlying privately-funded research apparently remains the property of private parties, they can control how their research is used by EPA as best suits their interests.”

In short, the bill solves no problem, and in fact would introduce potentially dangerous new policies that are aimed at preventing the EPA from fulfilling its mission of protecting people and the environment.  From the sponsors’ perspective, though, the real value of the bill is as a messaging tool.  You can’t find a shred of evidence that calls into question the integrity of the EPA’s science?  No problem.  All you have to do is introduce a bill that assumes that the EPA’s science is faulty, and—voila!—you’ve conjured a controversy from thin air.  It’s antiregulatory alchemy at its finest.

Meanwhile, the anti-EPA game in Congress shows no signs of ending any time soon.   No matter its outcome, though, the public interest in a clean and healthy environment will be the inevitable loser.

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Also from Rena Steinzor

Rena Steinzor is a Professor of Law at the University of Maryland Francis King Carey School of Law, and a past president of the Center for Progressive Reform. She is the author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.

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