People of good will can disagree about the role of government in protecting the public from harm. Libertarians believe that less government is preferable, even when risks to public health and safety are substantial. Others, including many environmentalists, tend to see a much larger role for government in ensuring our access to clean air and water, and protection from toxic chemicals, tainted food, dangerous drugs and devices, and other harms.
We can disagree about what we lose and what we gain in these various approaches and philosophies. But what is disturbing is when those who actually want to dismantle the federal regulatory system are not honest about their intentions. Instead, they hide behind misleading claims that greatly minimize the real-world impacts of the legislative proposals they advance.
A new attack on safeguards
Last week, Senators Rob Portman (OH), Angus King (ME), Mark Pryor (AK), Bill Nelson (FL) and Susan Collins (ME) were among Senators who jointly introduced the Regulatory Accountability Act of 2013. The Senators I listed have the reputation of being moderate in tone, and not anti-government.
Of course, nobody supports “dumb,” secret, and “unbalanced” regulation. But the fact is, their proposal would effectively make it impossible for science to inform agency actions to protect the public and the environment.
There are many reasons to oppose this radical proposal. But to me, the most extreme part of the bill affects the role of science in the work of federal agencies.
The Regulatory Accountability Act is written in complex legal language that will have a simple and drastic result. Any major action an agency proposes to protect the public and the environment will be vulnerable to challenges from corporate special interests. These challenges will enable corporations to question any science on which the agency’s assessment is based. And these challenges will be decided not by knowledgeable scientists but by an administrative law judge with no special scientific expertise. A judge will get to decide whether the science the agency uses is “genuinely in dispute.”
A real threat to science
We all know the end of this movie. Members of Congress, including the Chair of the House Science Committee, continue to dispute the validity of climate change predictions that have received as close to consensus as any scientific prediction in recent history. Can you imagine any regulation based on scientific evidence that will be able to avoid challenge?
For example, something we now take for granted—the successful effort by the Environmental Protection Agency to ban lead in gasoline—likely would not have happened if the Portman-Pryor proposal had been law. When a lead phase-out was first proposed in the 1970s, refiners and oil interests predicted it would harm the domestic energy economy and denied that lead was harmful. In 1978, the trade publication, Oil and Gas Journal, called the EPA’s effort “a costly and totally unnecessary mandate.” Portman-Pryor could have given these special interests the ammunition to have stopped the phaseout in its tracks. (As it was, it took the EPA 25 years to fully ban lead from gasoline.) And yet we know that the ban on lead in gasoline has saved millions of children from lead’s harm to developing brains and nervous systems.
Every scientific determination—a risk assessment about the hazards of a toxic chemical, the safety of a particular drug, Environmental Protection Agency pollution-control standards, endangered or threatened species listing determinations—will be fodder for corporate challenges to agency rules.
Science will be decided by non-scientists. Does this sound like a “balanced” approach to regulation?