Fifty years ago, the great American novelist Joseph Heller was in the midst of writing Catch-22, creating an enduring story and coining a phrase that has become part of our language. According to Merriam-Webster, Catch-22 means “a problematic situation for which the only solution is denied by a circumstance inherent in the problem or by a rule.” When I read the book years ago, I remember thinking it was a beautifully elegant example of another common aphorism, “Damned if you do, and damned if you don’t.”
Of course, Heller could not have known about the proposed “Secret Science Reform Act” considered by the House Science, Space and Technology Committee, but frankly it seems like he did. The Act would require the Environmental Protection Agency to make public all data, scientific analyses, materials and models before promulgating any regulations. Because EPA makes rules based on current scientific understanding of the impact of pollution, this proposed law would prohibit the agency from moving forward with regulations unless all that information was openly available, which it often isn’t for a variety of reasons. There is no accompanying requirement for industry to make data public for use by the agency, nor a requirement to waive the privacy rules that often accompany public health data, nor a waiver of trade secrets or intellectual property. In fact, the same bill clearly states that EPA may not publicly disclose any such information.
Transparency versus privacy
Making as much scientific evidence as possible available to the public is a good thing. But privacy rules are also critically important to the citizens of this country. Information such as data on the health of individuals should be protected, as should intellectual property rights, as these have an important place in our economy.
Most often, it is not the raw data and materials the public and decision makers need access to, but the studies that have gone through the scientific process, with peer review and its checks and balances. To ensure science-based decision making, the relevant science must be reviewed by experts in the field. This is the important watchdog role that ensures it is the best available science, not the examination of raw data by politicians. Access to this synthesis of scientific information is what should be of public concern.
So let’s not pretend this proposed law is for the public. This act is clearly intended to allow industry to challenge the rules with competing analyses, slow the process, and cast doubt. That is a well-known playbook so effectively developed by the tobacco industry, and used by many others, to undermine public health rules concerning their products.
So, here is the Catch-22: according to this proposed law, the EPA must only make regulations when data and scientific analysis can be publicly released, but it cannot require the companies, research organizations, other groups or individuals to make data public. The result? EPA will not be able to make regulations.
A case in point and perhaps the motivator for this proposed bill are the Clean Air Act standards for particulates, which have been the focus of industry and some committee members’ ire for some time. In that case, public health data from long-term studies is confidential due to privacy concerns. And while the studies in question have been important to understanding the health impacts of particulates, there is a large body of research on the impacts of particulates on respiratory illness and public health.
Consider what would happen if the Secret Science Reform Act became law. Studies using data on public health, inevitably collected with an assurance of confidentiality to studies’ participants, could no longer be used by the EPA. Even if the scientific publications were made available for all to see, the raw data wouldn’t be available, so the regulations would be forbidden. In this dysfunctional scenario, EPA could not protect our health, water, air, or environment because they would have no information linking pollutants to public health effects. And the erosion of those essential science-based rules that protect our health and well-being would follow.
Perhaps we would go back to the time when smog filled the air, rivers and harbors were grossly polluted, toxic contaminants were uncontrolled and little was being done about it. A time like the 1950s when Joseph Heller started his novel. And gave us the phrase “Catch-22.”
The Secret Science Reform Act really could be named Catch-22, but that is the intellectual property of the late Mr. Heller. So, instead it should be stopped in its tracks.