Science reform eyed as path to unravel EPA’s endangerment finding

Source: Scott Waldman, E&E News reporter • Posted: Tuesday, March 20, 2018

The plan now being developed at U.S. EPA to restrict the science the agency uses could affect the crafting of regulations for years and become one of the most enduring parts of Administrator Scott Pruitt’s legacy.

The plan under consideration is expected to limit the science used in EPA regulation to studies where the data could be published and reproduced. And while the agency is still considering the exact scope of its restrictions, both critics and supporters of the plan agree that it will fundamentally transform the way EPA uses research.

Supporters say it will prevent opaque “secret science” from being used to form regulations that could affect billions of dollars in economic activity. Opponents say it will eliminate from consideration much of the groundbreaking research the agency has used to protect Americans against pollution.

EPA’s expected reform efforts are inspired by legislative measures boosted by Republican Rep. Lamar Smith of Texas, chairman of the House Committee on Science, Space and Technology and one of Congress’ chief antagonists toward mainstream climate scientists. Smith has pushed legislation in recent years that would require new EPA regulations to be based on science that is reproducible and whose data is public. The most recent iteration of Smith’s legislation, which is called the “Honest and Open New EPA Science Treatment (HONEST) Act,” passed out of the House a year ago but has failed to advance in the Senate.

But a group of influential conservative voices, including Trump EPA transition team members and researchers from conservative think tanks, want Pruitt to go further. They want Pruitt — who recently told a group of conservatives gathered at the Heritage Foundation that the agency was working on the issue — to impose the requirement on all science used at the agency. Some even see it as a way to potentially go after the endangerment finding for greenhouse gases, which is the legal underpinning of EPA’s climate regulations.

Science transparency can be used to go after the supporting documents for the endangerment finding, to evaluate its quality, said Pat Michaels, director of the Center for the Study of Science at the libertarian Cato Institute, which had a representative at the Heritage Foundation meeting. Michaels has long criticized climate models used in future predictions, and he believes that making data around the models transparent would prove his theory and make it easier to pick apart the models.

“We’re all for rigorous examination of the models that are being used, especially the models for the endangerment finding,” he said. “It’s pretty apparent they’re not working well, and if, for some reason, it’s left to me and my few friends to point this out, I think it would be a good idea [and] that the agency should do it.”

Regardless of whether it becomes a club against the endangerment finding, the directive could have significant impacts for studies now in place, said Bernard Goldstein, dean emeritus of the University of Pittsburgh Graduate School of Public Health and the former EPA assistant administrator for research and development in the Reagan administration. For example, air pollution rules must be re-evaluated by the agency every five years under the Clean Air Act, and the science data directive could sharply limit “just about everything” in those reviews, he said. That includes research from around the world, and there is little chance that scientists in Britain, France or Australia would turn over raw data to the Trump administration, he said.

“You’re basically throwing out the data you have, that you’ve built up over many, many years,” he said.

In pushing back against the estimates by EPA’s career staff that the “HONEST Act” would cost more than $250 million annually, Pruitt’s EPA staff suggested that it would not apply to many studies that it would rely upon, according to a Congressional Budget Office analysis. That may suggest that the agency is now looking at crafting the plan to fit future regulations, rather than a retroactive look at those in place. That would mean Pruitt could roll out the plan in a dramatic public presentation as he did with his reform of the science advisory boards, but it would have a far smaller impact.

EPA didn’t respond to a request for comment about the expected announcement.

Bad for industry?

Critics of the proposal say it would have lasting damage and might even earn industry’s ire because it could easily be reversed by the next administration.

The requirement would privilege industry data, because many key studies upon which regulations were built are historical and don’t have raw data available, said David Michaels, a George Washington University epidemiologist and former assistant secretary at the Occupational Safety and Health Administration in the Obama administration. That means EPA’s regulatory, or deregulatory, agenda wouldn’t be based on the best available science but only that which has been produced by industry and has raw data. One example, he said, of studies that would be excluded by data restrictions is some of the key research on lead, which goes back years, and which Pruitt has said is a priority for the agency this year.

“Industry would provide the studies they’ve done that show the effects are minimal or less, and they would provide the raw data,” he said. “But some of the historical studies which have found a higher risk associated with this exposure might not be available, and so this sort of process could support that rolling back of regulations even though good science would tell you not to do that.”

Even if the science reforms are issued through a directive, and it is wiped out by the first post-Trump EPA administrator, it has the potential to create lasting damage for years, he said. That sort of back-and-forth creates an uncertainty that even industry will oppose, he said.

“If this is being used to alter regulation, then those take many years to change, and that’s a concern,” he said. “It’s bad for public health; it’s bad for industry, which needs some certainty.”

Pruitt mentioned that a plan was forthcoming to a group of conservatives gathered at the Heritage Foundation last week. Some of those who were there, or whose group was in attendance, want Pruitt to go further than the “HONEST Act.”

“I hope that it’s tighter than that,” said Steve Milloy, a former coal executive and member of Trump’s EPA transition team who has pushed the agency to impose such restrictions for years. “I hope that EPA does not regulate at all unless the underlying scientific data can be made available, and I don’t think there is any legislation yet that is that strong.”

Milloy said the final plan would likely not go as far as he would like, because some industry groups, including the pharmaceutical industry, are lobbying against it. He said his goal is that EPA does not rely on any data that cannot be challenged.

“If they don’t want to defend their data, I’m hoping that is the last we see of it,” he said.

Critics of the plan say the greatest danger of the plan, and perhaps its most problematic legacy is its ability to quickly spread to other federal agencies. It’s likely that if proponents see the plan put in place at EPA, they’ll seek it in the Federal Drug Administration or Department of Agriculture, anywhere that government has imposed regulations, said Goldstein, the former EPA official in the Reagan administration. It would also interfere with ongoing regulatory efforts that have been underway for years, he said, wiping out the potential use of an unprecedented amount of essential research.

“This scares the hell out of me and has for quite some time,” he said. “You can just about pick any agency that’s using science on regulatory things and say, ‘Hey, if we get away with it at EPA, we can do it for any of these.'”