Bringing Science Back to the EPA — Whether EPA Wants it or Not.

October 9, 2019 | 11:25 am
Ken Kimmell
Former President

The current administration’s attacks on both scientists and science are unprecedented, reaching a new low a few weeks ago when the White House Chief of Staff and the Secretary of Commerce attempted to stifle NOAA employees from giving the public accurate information about the path of Hurricane Dorian. Scientists within the federal government and across the country have struggled to find ways to make sure that their vital work continues in the face of such attacks.

I am proud to tell you about one smart, creative, and innovative approach that will be tried this week, and which UCS is helping to sponsor.

A “voluntary panel” comes to the rescue

On Thursday, a group of highly qualified experts will meet to provide their expert opinion on whether the US EPA should revise the national ambient air quality standard for “PM 2.5” which are tiny particles of soot that are known to cause lung disease and other maladies, particularly in overburdened communities.

While scientists meeting to debate a technical issue is not on its face unusual, this meeting is. This group of scientists, formerly comprised an official “pollutant review” panel set up under the federal Clean Air Act to give expert advice to the EPA on PM 2.5. In October 2018, this panel was disbanded by EPA. Rather than sitting by idly and disempowered, the twenty scientists on this panel decided to meet this week and essentially duplicate what they would have done had they not been disbanded; i.e., review the scientific literature on PM 2.5 exposure and risk , engage in a rigorous debate, and recommend standards that adequately protect public health and welfare.

We should all be thankful for their work. As my colleague Gretchen Goldman has explained, setting national ambient air quality standards for various pollutants is extremely important in protecting our health and safety—and it is devilishly complex. Receiving the best science is critical to getting the standards right.

In fact, EPA routinely uses these panels to supplement the expertise of the Clean Air Scientific Advisory Council (CASAC) which is a small body of seven members that does not have expertise in all the pollutants regulated by EPA. The disbanding of this panel was highly unusual, raising the troubling specter of the EPA seeking to set a national air quality standard without adequate scientific input.

These concerns were confounded when the CASAC itself admitted that it lacked the scientific expertise to review PM 2.5, and when EPA Administrator Wheeler proposed using hired consultants rather than a pollutant review panel to supply the missing expertise. As Dr. Goldman points out, this alternative does not suffice, as these consultants would not have the opportunity to engage with the CASAC or each other in real time, and they will not be able to offer expertise on any topics outside the narrow questions they are posed.

The voluntary panel has, in effect, come to the rescue here to supply the missing expertise, and ensure a robust scientific review.

Legal implications

In addition to making sure that EPA has the best available science when it sets this standard, there is another significant benefit of this panel’s work, and it has to do with judicial review of the standard EPA ultimately adopts. Under the Clean Air Act, when EPA sets air quality standards for various pollutants like PM 2.5, it is required to consult with CASAC. And if EPA departs from CASAC’s recommendation, courts require EPA to be “precise in describing the basis for its disagreement with CASAC” and to point to “substantial evidence in the record when considered as a whole which supports the Administrator’s determinations.” In other words, once a scientific panel is established to give expert advice to EPA, EPA cannot lightly disregard that advice and expect to win in court.

But here, CASAC has acknowledged that it lacks the expertise on PM 2.5. But rather than empanel the PM 2.5 pollutant review panel to provide that expertise, the EPA has disbanded it. This means that if EPA ultimately sets a weak standard, it won’t have to explain to the court why it disregarded the advice of qualified advisory scientists.

The panel’s voluntary work here can help with this legal Catch-22. While this panel is no longer an official government advisory group, it is likely that a reviewing court would give its recommendations significant weight. After all, the “voluntary panel” is made up of the same recognized experts from around the country that previously were set to advise the government, and a reviewing court is likely to look skeptically upon EPA if it were to deviate from the panel’s recommendations. Thus, the work of this voluntary panel can provide a check upon EPA and assist in litigation if a weaker standard is challenged in court.

Part of a broader trend

This panel is part of a larger “do it yourself” trend, in which private citizens, companies, state and local governments and others are in effect filling the void created by the Trump administration’s abdication of its duty to protect public health and safety. For example, when the Trump administration threatened to decrease carbon pollution limits for our cars and light duty trucks, four automakers stepped up to pledge that they will build cleaner cars even if federal standards are weakened. Similarly, when President Trump vowed to pull the US out of the Paris climate agreement, a large coalition of state and local governments, corporations and universities proclaimed, “We are still in” and vowed to take their own measures to reduce greenhouse gas emissions.

This is one blessing of our system of government: when the federal government does not do its job, others, including private citizens can fill in. While this is not a substitute for a robust federal government committed to science-based policy, we can all be grateful that the scientific enterprise continues, and these twenty scientists deserve our thanks for keeping this important work alive.