Today, UCS submitted our comment on the Environmental Protection Agency’s flawed strengthening transparency rule. In our view, this is a proposal beyond fixing. It rests upon an erroneous assumption that the EPA’s regulatory science is not sufficiently accessible to the public. The rule would create a path for opportunistic representatives from regulated industries to challenge the science the EPA uses, tie up the agency in reanalysis paralysis, and saddle external researchers with excess work to arbitrarily give access to underlying data. It has got to go.
Here are the key arguments we make in our comment:
Lack of authority to enforce the rule will violate laws
There’s a reason environmental statutes include the requirement to follow the best available science when adopting regulations. This rule, which would downweight or exclude studies based on the level of accessibility of the underlying data, would preclude EPA from following the statutory mandate to use the best available science. Read more on the EPA’s tenuous legal argument in a UCS guest post by the Center for Progressive Reform’s James Goodwin.
Lack of input from the EPA’s own scientists and broader scientific community
The rule makes a lot more sense when you realize there was very little input from the scientific community on this proposal. Input from the scientific community in the 2018 comment period was overwhelmingly in opposition to the rule. The EPA didn’t involve its own scientists and did everything it could to put off input from its own science advisors, the Science Advisory Board (SAB), so that its critique would not even cover the full scope of the rule and it would come too late to inform its development. More on SAB’s final criticisms of the rule, which were many, in my post here.
The supplemental notice clarifies language, expanding it to its detriment
The supplemental notice expanded coverage of the proposal to all “influential scientific information,” which is significantly more of the EPA’s documents than “pivotal regulatory science.” Another shift is around the goal of making the data public to being with. In the supplemental notice, the EPA makes it clear that the purpose is “reanalysis” which means fact-checking studies that have already been through peer review. As I write in this blog post, it would bog the agency down with busy work and introduce more opportunities for political interference in EPA science.
New tiered-access and weighting approaches are problematic and do not address central concerns
As my colleague Gretchen Goldman explains, the EPA’s proposal to downweight or exclude research based on the accessibility of the underlying data would unfairly and arbitrarily devalue scientific work relying on things like personally identifying health data. Further, it would put the large cost, time, and resource burden of creating a tiered-access system on researchers doing important policy-relevant work.
The EPA doesn’t have a plan for keeping sensitive or confidential information private
In two years of the development of this rule, the EPA still has no answers regarding how it would ensure that sensitive or confidential information is kept private if this rule were implemented. My colleague, Anita Desikan, illustrates how dangerous this would be.
Consideration of unscientific models for determining health effects
The supplemental notice clarifies that the rule applies to underlying data, including all models (not just dose-response models). It also suggests that the agency consider non-linear models in its scientific documents. This could bias the data to such a degree that low doses of a pollutant may appear less harmful—or even beneficial—to the health of persons. This expansion increases the proportion of EPA work where this rule would disrupt current processes to develop and implement models on environmental threats. Inclusion of such models beyond what is already in established epidemiologic and toxicologic literature and left to the scientific judgment of experts in and outside of the agency is not scientifically justified.
Implications for the EPA, other agencies, and external researchers
Despite the agency considering this to be a merely procedural rule, its implementation would do damage to EPA science, bleed into the work of other agencies, and burden external researchers whose work should be feeding into mission-critical environmental and public health policies.
Implications for impacted communities
The research that relies upon confidential data is some of the most useful in understanding exposure of toxins and impacts to environmental justice communities. These studies help the EPA to set standards that are more health-protective of the places hit hardest by environmental pollution. Despite its potential to disproportionately impact these communities, authors of the rule shamefully did not even consider these impacts in its development. Anita Desikan has more on that.
This rule has got to go
There’s still time to join with the many members of the public who commented at the virtual public hearing we hosted last month and to send in your comment to the EPA. Tell the EPA to scrap this proposal before it wreaks havoc on the use of the best available science in public health and environmental policy. We have details and a guide for submitting comments available here.