CPR Urges EPA to Abandon Unjustified and Harmful Censored Science Rulemaking

Darya Minovi
James Goodwin

May 20, 2020

Earlier this week, we submitted a public comment to the Environmental Protection Agency (EPA), criticizing the agency's March 2020 supplemental proposal for its “censored science" rulemaking. This rule, among other things, would require the public release of underlying data for studies considered in regulatory decision-making, and thus might prevent the agency from relying on such seminal public health research as Harvard’s Six Cities study, which have formed the backbone of many of the EPA’s regulations, simply because they rely on confidential data.

First proposed during the brief and tumultuous tenure of former EPA Administrator Scott Pruitt, the rule, officially known by its Orwellian moniker “Strengthening Transparency for Regulatory Science,” has become a key part of the Trump administration’s assault on the agency’s credibility and authority. Indeed, the arrival of this administration has seen the EPA completely abandon its mission of protecting public health and the environment to pursue the weakening or elimination of vital safeguards at the behest of the administration's industry benefactors. The administration’s motive was clear in 2017 when President Trump appointed Pruitt – a fossil fuel industry ally and vocal climate skeptic – to lead the EPA. The subsequent appointment of coal industry lobbyist Andrew Wheeler in 2018 has proven to be no improvement.

A New York Times tracker tallies 64 completed and 34 in-progress environmental rollbacks since 2017. In the last two months alone, EPA announced a sweeping non-enforcement policy, effectively excusing non-compliance among polluters during the COVID-19 pandemic. The agency also announced its final rule rolling back vehicle emissions standards and weakened mercury and air toxic standards (known as MATS) for power plants. Finally, Wheeler abandoned efforts to strengthen national PM2.5 (fine particulate matter) standards, despite recommendations from EPA scientists. This is all happening as new research shows that elevated exposure to particulate matter is associated with an increased COVID-19 death rate.

Contrary to the agency’s claims, the supplemental proposal for the censored science rule fails to address the grave concerns raised by more than half a million scientists and public interest advocates in response to its original proposal. The rule’s provisions remain anything but transparent and only serve to further attack science and harm public health.

As detailed in our comment, the EPA has failed to even meet the basic threshold responsibility of identifying a legal authority that would authorize it to issue this rule. The supplemental proposal makes the novel claim that an obscure law dating back to 1789, the Federal Housekeeping Statute, provides this authority. The trouble is that by its own terms, this law does not apply to the EPA. Whoops. And, even if it did, the modest authorities it confers would never come close to authorizing something as far-reaching as the censored science rule.

Furthermore, the rule will inevitably harm public health and the environment. The supplemental proposal claims that data underlying studies reviewed by the EPA be publicly available for “re-analysis,” yet does not articulate why it is necessary to recalculate results of peer-reviewed research. Not only does this provision undermine existing, robust agency standards for peer review and information quality, but it would be prohibitively costly and time-consuming to implement. And applying the rule retroactively and expanding the scope to include “influential scientific information” only further stretches the agency’s already-limited resources. Efforts to protect communities currently burdened by pollution could effectively come to a standstill if EPA researchers are tasked with unnecessarily scrutinizing nearly every study that comes through the agency’s doors.

The EPA’s response to concerns regarding data availability is to weigh more heavily studies where data are publicly available. This “compromise” is arbitrary and runs counter to principles of transparency, as the agency would rely more heavily on a study with publicly available data over one that meets the highest scientific standards and yields compelling results. The public availability of data should not be the primary determinant of scientific rigor and quality and only serves to exclude research that may influence the outcomes of regulatory decision-making.

To be clear, knocking the best science out of the regulatory process as this proposal would do is not a side effect of a poorly thought-out rule. It is the true purpose of the initiative. Trump, Wheeler, and Pruitt before him set out to slant the regulatory process by further tilting it toward industry's interests. Serving the goal of transparency is nowhere on their agenda, and neither, for that matter is the agency's statutory mission of protecting public health and the environment.

If the EPA truly sought to achieve transparency, it would prioritize assessments of new and emerging research and, as CPR Member Scholars Wendy Wagner and Rena Steinzor suggest, require conflict of interest disclosures and apply the standards prospectively, providing researchers with ample notice of the new requirements.

Until the EPA provides a credible legal and scientific basis for this rulemaking, the agency should abandon this unjustified, misleading, and dangerous proposal. Our full comment can be read here.

CPR Member Scholar Sean Hecht also submitted a comment on behalf of 100 law professors at 70 universities in 33 states and Washington, D.C., including many of CPR’s Member Scholars. You can read more about that letter on Legal Planet.

Top photo by the Natural Resources Defense Council, used under a Creative Commons license.

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