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  • Environmental Law Section Blog
    August
    16
    2018

    Environmental Science under the Current Environmental Protection Agency

    Steph Tai

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    This administration has made a number of significant changes to how the Environmental Protection Agency addresses scientific expertise and evidence. Steph Tai provides a brief summary of many of these changes.

    The current administration’s Environmental Protection Agency has changed its approach to incorporating science in its decision-making processes. Here is a short summary of some of the changes.

    Composition of Agencies and Advisory Boards

    Commentators have noted the withdrawal of many nominees for traditionally “scientific” environmental positions.

    For example, the nominee for the EPA Office for Chemical Safety and Pollution prevention, Michael Dourson, had to withdraw due to charges of conflicts of interest. Similarly, the White House withdrew the nomination of Kathleen Hartnett to chair the White House Council on Environmental Quality due to public concerns regarding her lack of scientific expertise and rejecting mainstream climate science. Nomination proceedings for Mary Neumayr, announced as a candidate on June 13, 2018, are still pending.

    Steph Tai edu tai wisc Steph Tai,, Georgetown University 2000, is a law professor at the U.W. Law School, where she teaches administrative law, environmental law, advanced contracts, and food law.

    The lack of scientifically trained officers for these positions – or, indeed, any appointed officers for such positions – can have a profound effect on internal scientific review policies, since that is part of the responsibilities for these posts.

    Nor is it likely that the EPA is deferring to the various advisory boards formed in the past to provide scientific guidance and evaluation. The EPA dismissed half of the 18 members of its Board of Scientific Counselors in May 2017. It also cut the funding of the EPA Science Advisory Board by around 80 percent in May 2017; as of March 2018, the board had not met in six months.

    Finally, in October 2017, then-administrator Scott Pruitt announced that EPA would block researchers funded by EPA grants from serving on advisory boards. Given that the primary recipients of such grants are university researchers, this policy effectively limited the number of academic researchers serving on these advisory boards and reduced the amount of expertise available to the EPA.

    General Agency Structure Affecting Scientific Input

    The EPA has also changed its own organizational structure in ways that may affect its consideration of science. For example, in February 2018, the EPA merged its Office of Administrative and Research Support, its Office of Program Accountability and Resource Management, and the grants and contracts managed by its National Center for Environmental Research, to create a new EPA Office of Resource Management.

    This merger risks prioritizing general office administration and high-level administrative influence over the grant-giving work of an office that should be devoted to funding policy-supporting research on environmental harm exposure, effects, risk assessment and risk management.

    The EPA has also reduced the availability of information on its webpages regarding climate science, information that outside researchers have historically and often relied upon. The Environmental Data and Governance Initiative, a nonprofit, has been tracking these changes, and has identified a number of significant website changes.

    Proposed EPA laws and Regulations Affecting Agency Use of Science

    Finally, the EPA, the president, and Congress have made a number of governance proposals that directly affect EPA’s use of scientific information. The following section presents the most significant of these proposals in chronological order.

    2-for-1 Regulatory Repeal Executive Order

    In February 2017, President Trump announced what has been described as the 2-for-1 regulatory repeal executive order. This order requires each federal agency to revoke two prior regulations for every additional regulation it issues.

    The EPA, in turn, issued a proposed regulation to implement this executive order. Over 80 law professors(including the author of this blog) submitted a detailed comment critiquing the proposed regulation as failing to recognize the economic benefits of existing regulations, as well as failing to comply with the Administration Procedure Act. Indeed, this EPA proposal was challenged by groups such as Public Citizen and the Natural Resources Defense Council for similar reasons; that challenge was dismissed in February 2018 for lack of standing.

    Red Team/Blue Team Approach toward Climate Science

    The EPA has attempted to change the structure of how it approaches scientific research on climate change, through the July 2017 proposal of former EPA administrator Scott Pruitt, to use a “red team/blue team” approach to debate climate science.

    Under this proposal, the validity of climate science would be determined by public debates between two “teams” assigned to argue the “pro anthropogenic-climate-change side” and those assigned to argue against that side.

    This proposal was apparently stopped in March 2017, after White House Chief of Staff John Kelly weighed in to stop its implementation. Had the EPA followed the proposal, however, it would have been an unprecedented approach toward the agency evaluation of scientific evidence, placing this debate less within the realm of scientific expertise and more within the arena of rhetoric and public debate.

    EPA Research Transparency Proposal and the Honest Act

    On March 8, 2017, Rep. Lamar Smith proposed H.R. 1430, an act known as the Honest Act. This act requires the EPA, in engaging in many of its regulatory and guidance-based actions, to rely upon

    “(A) the best available science;
    (B) specifically identified; and
    (C) publicly available online in a manner that is sufficient for independent analysis and substantial reproduction of research results, except that any personally identifiable information, trade secrets, or commercial or financial information obtained from a person and privileged or confidential, shall be redacted prior to public availability,”

    without specifying any details for implementation. While the Act was passed by the House on March 29, 2017, it is still pending before the Senate.

    Relatedly, on April 24, 2018, the EPA submitted a proposed rule on data transparency, Strengthening Transparency in Regulatory Science (Transparency Proposal), containing many provisions similar to the Honest Act.

    Unlike the Honest Act, however, the Transparency Proposal would exempt

    “significant regulatory decisions on a case-by-case basis if [the EPA] determines that compliance is impracticable because it is not feasible to ensure that all dose response data and models underlying pivotal regulatory science are publicly available in a fashion that is consistent with law, protects privacy and confidentiality, and is sensitive to national and homeland security”

    and may therefore allow for more tailoring than the Honest Act. Comments on this proposed rule are currently due Aug. 16, 2018.

    Critics have raised concerns that these changes would hinder EPA’s ability to protect human health, may interfere with other regulatory requirements for human subjects research, and may be inconsistent with Administrative Procedure Act requirements.1

    Human Health Studies and Publicly Available Data

    With respect to human health, the requirement that EPA may generally only base its actions upon studies for which the data are publicly available drastically limits the sorts of studies that the EPA can rely upon to follow its health-protective mission.

    This is because most public health studies guarantee confidentiality to their participants due to privacy concerns, and the structure of their data collection often makes after-the-fact redaction impossible.

    Indeed, these privacy concerns are encoded in other aspects of federal law known as the Common Rule, developed to respond to ethical concerns raised by the 1970s Tuskegee Experiment.

    Under the Common Rule, researchers must follow basic provisions of informed consent, including that

    “[w]hen appropriate, [human subjects research must contain] adequate provisions to protect the privacy of subjects and to maintain the confidentiality of data.”2

    Finally, while the Honest Act and the Transparency Proposal may bar EPA’s consideration of studies whose underlying raw data may be confidential, despite their general support within the scientific system of peer review, the Administrative Procedure Act only speaks to the “arbitary[ness or] capricious[ness]” of agency actions,3 and failure to consider published peer-reviewed studies could be regarded as “arbitrary and capricious” by courts.

    EPA Cost Benefit Proposal Regarding Consideration of Benefits

    Finally, on June 7, 2018, the EPA issued an advanced notice of public rulemaking proposing to change how it considers costs and benefits in making policy decisions.

    Among other things, the notice suggested that EPA is considering how it weighs co-benefits – benefits that arise when reduction of one pollutant often leads to reduction in related pollutants – in its regulatory decisions.

    Advocates have raised concerns that the proposed changes will lead to a less complete accounting of the benefits of proposed regulations, with the clean air director of the Natural Resources Defense Council stating “It's a matter of basic, honest economics to include direct and indirect benefits, and direct and indirect cost, when conducting credible benefit-cost analysis.”4

    The Future of the Science at the EPA

    These various changes and proposals, taken together, could have significant changes on how the EPA incorporates science into its decision-making processes. Observers would therefore be wise to keep track of EPA’s implementation of these changes to understand outcomes and impacts in Wisconsin and beyond.

    Endnotes

    1 Disclosure: The author of this article is currently working with clinical professors at Harvard Law School to draft a comment on this proposed rule.

    2 45 C.F.R. § 46.111(a)(7)

    3 5 U.S.C. § 706(2)(A)

    4 Clean Air Advocates Worried by EPA’s Move to Rethink Cost-benefit Calculations, Science, June 25, 2018.





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