The Trump administration delivered an eleventh-hour blow to the regulatory state Tuesday by finalizing a scientific transparency rule requiring the Environmental Protection Agency to back up its mandates with publicly available data.
EPA Administrator Andrew Wheeler‘s signing of the so-called secret science rule drew fierce backlash from Democrats and environmentalists who say it would limit the agency‘s access to research, compromise privacy and threaten current regulations. The administration denied those claims.
“Nearly all of the criticisms of the rule are the same: that the rule would somehow weaken the science informing EPA‘s actions. This claim is a strange one and repeated by people who have not read the rule,” Mr. Wheeler said at a virtual forum sponsored by the free market Competitive Enterprise Institute.
He said the rule applies only to future regulatory actions and “protects personal information and confidential business information and does not require the release of either, despite misrepresentations in the press as late as this morning.”
“EPA can secure independent validation of results and still protect confidential and personal information,” Mr. Wheeler said. “What this new rule will do undoubtedly is provide the transparency needed to allow the public the opportunity to check our work.”
The rule, formally called Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information, takes effect Wednesday upon publication in the Federal Register. It directs the EPA to prioritize studies that are publicly accessible for independent replication and to identify and make available the key studies behind significant regulatory actions.
Environmental groups pushed back. The Environmental Defense Fund urged the incoming Biden administration to reverse “as soon as possible” what it called the “censored science rule.”
“It’s a nasty parting shot from an administration that has undermined science and jeopardized our foundational environmental and public health protections from its beginning,” Environmental Defense Fund senior attorney Ben Levitan said in a statement.
Liz Perera, climate policy director for the Sierra Club, called the rule a “last-ditch attempt by the outgoing Trump Administration to block public health protections in the incoming Biden Administration.”
“The goal of this rule is to allow corporate polluters to continue to pollute in vulnerable communities by restricting the science that will justify stronger clean air and water protections,” Ms. Perera said in a statement. “This rule is as shameful as it is underhanded, and we urge the Biden Administration to quickly work toward overturning it.”
No more ‘smoke-filled backroom’ rules
Proposed in 2018, the rule was aimed in part at addressing the “replication crisis” in which third-party researchers are unable to reproduce the results of scientific studies, as well as concerns over politicized research seemingly aimed at bolstering a particular policy outcome.
Mr. Wheeler suggested that opponents of the rule are less interested in upholding scientific integrity than with enacting stringent environmental crackdowns with minimal pushback.
“Opponents of this rule have made unsubstantiated claims against it and misrepresented its effect, which makes me wonder what their motive is,” he said. “I believe a number of the critics are very cynically trying to kill this effort because they prefer the agency to make decisions in a proverbial smoke-filled backroom where they don’t have to explain how the agency reached a particular decision on a pesticide or chemical.”
Supporters of the rule include Myron Ebell, director of the CEI Center for Energy and Environment, who credited the agency for significantly overhauling the original proposal.
“This rule was originally proposed in a way that created a huge amount of controversy and negative reaction, and I think to EPA‘s credit, they went back to the drawing board,” Mr. Ebell said. “The new rule has broadened the application but narrowed what it does.”
He said the rule is not a “magic bullet” to solve the replication crisis but “an incremental step forward that takes a piece of this wider crisis in scientific integrity.”
An EPA rule-making decision can involve hundreds, if not thousands, of studies, making it nearly impossible to figure out which are central to a regulation. The process often fuels confusion and litigation.
“My goal through this and our cost-benefit rule is to actually reduce litigation and reduce misunderstanding of our regulatory decisions,” Mr. Wheeler said. “I really do fundamentally believe if we do a better job of explaining to the American public what we are doing, there will be more acceptance of our regulatory decisions.”
He said the EPA administrator retains discretion to grant case-by-case exemptions but will now have to explain “why they’re using a study where the information is not available to the public.”
The changes failed to win over Sen. Thomas R. Carper, Delaware Democrat, who said the rollout of the “censoring science” rule represented “one last gasp of science denial” for the Trump administration.
“Amid an ongoing public health crisis — a time when accessing the latest scientific research and embracing scientific advancements is a critical function of protecting human health — the Trump EPA is trying to limit the use of scientific data, even data that could be used to address the growing link between exposure to air pollution and adverse outcomes of COVID-19,” Mr. Carper said in a Dec. 31 statement. “It’s as absurd as it sounds.”
“Quite frankly, with the misinformation coming out of China on a daily basis, and the whole problem we’ve had with coronavirus, I would hope that any EPA future administrator would look skeptically at any research coming out of China if that data’s not available,” Mr. Wheeler said. “How do we know that the data’s accurate?”
Mr. Ebell said he hopes the rule will encourage more transparency in other agencies that rely on scientific research, including NASA and the National Oceanic and Atmospheric Administration.
“The problem that we have with secret science, climate science for example, at NOAA and NASA, is that it’s ‘Trust us; we’re scientists.’ That’s career scientists at the agency, and it’s also outside scientists,” Mr. Ebell said. “At EPA, the problem is not only that. It’s ‘Trust us; we’re regulators,’ and you can’t trust either unless you have transparency. That’s why this rule is important.”
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