New Legislation: How the House of Representatives Would Use Scientific Uncertainty to Stop Environmental Legislation

by Sidney Shapiro

November 20, 2014

The House of Representatives has passed legislation (H.R. 1422) that prohibits academic scientists on EPA’s Scientific Advisory committee from participating in “activities that directly or indirectly involve review of evaluation of their own work,” but allows scientists who work for industry to serve on the Board as long as they reveal their respective conflicts of interest. To understand the House’s real motives, it is necessary to appreciate how industry seeks to use scientific uncertainty as an excuse not to act on environmental problems.  Senator Inhofe’s claim that global climate change is a hoax is a well-known example of this tactic.  Less visible is a decades long public relations, litigation, and advocacy campaign by corporate interests to manufacturer doubt about the science that supports environmental regulation.

A common feature of environmental legislation is legislative authorization to act on the basis of anticipated harm, making scientific uncertainty an unavoidable aspect of regulatory science.  Congress has decided time and time again that we cannot wait for science to be absolutely certain because the human and environmental toll would be too great.  Instead, it has instructed EPA to act when there is a reasonable scientific basis to anticipate that harm will occur.  In order for EPA to evaluate whether there is sufficient, although not conclusive, scientific evidence, it seeks advice from Scientific Advisory Board about existing scientific evidence, but ultimately the agency must make an expert judgment about whether there is enough scientific evidence for its to act. 

Since EPA is prepared to act despite some scientific uncertainty, industry scientists and lawyers spend their time focused on the uncertainty, rather than on the available, reliable evidence.  Their claim is always, in effect, we don’t know enough yet to act.  The tobacco industry, which steadfastly insisted that the scientific evidence was not sufficient to prove cigarettes caused cancer as long as it possibly could, provides the blueprint for manufacturing doubt. Now, the House of Representatives wants to bias the scientific review process at EPA to favor this effort. 

H.R. 1422 would prevent EPA from relying on academic experts who have spent their careers doing a certain type of research from serving on the Scientific Advisory Committee if that research was relevant to proposed EPA regulation.  In other words, EPA could not appoint the very scientists who know the most about a scientific subject.  EPA, however, could appoint industry scientists, who are paid to find ways to argue that there is too much uncertainty to regulate.  Supporters of the legislation argue that the disqualification is necessary to prevent the committee process from being biased, but the House is perfectly willing to have industry paid scientists weigh in, although they have an obvious and far more worrisome bias. Who would you trust to give good advice: a reputable academic scientist who does not take money from the industry being regulated or an industry paid consultant? 

Ultimately, EPA’s decision of whether the scientific evidence is sufficient to regulate is a legal and policy question.  But it needs to be informed by good scientific advice.  The House is not interested in good advice.  It is interested in advice that supports the effort to manufacturer uncertainty.  







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Sidney A. Shapiro holds the Fletcher Chair in Administrative Law at the Wake Forest University School of Law and is the Associate Dean for Research and Development. He is a member of the board of directors of the Center for Progressive Reform.

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