Why Senator Lankford’s “BEST Act” Is Really the Worst for Federal Science

April 3, 2017 | 5:22 pm
Yogin Kothari
Former Contributor

A few weeks ago, Sen. James Lankford (OK) introduced legislation called the “Better Evaluation of Science and Technology Act,” or “BEST Act” for short. The proposal takes the scientific standards language from the recently updated Toxic Substances Control Act (TSCA) and applies it to the Administrative Procedures Act (which governs all federal rulemaking). Sen. Lankford claims the BEST Act would guarantee that federal agencies use the best available science to protect public health, safety, the environment, and more.

Nice sound bite, right?

In practice, though, this bill would cripple the ability of agencies like the Environmental Protection Agency (EPA) and the Consumer Product Safety Commission (CPSC) to rely on scientific evidence to issue public health and safety safeguards. It’s just as radical as the numerous other bills that would enable politics to trump science, making all of us more vulnerable to public health and environmental threats.

How this works in the real world

How would it do that? It’s simple really. If you look at the bill language carefully, it consists of significant legal jargon and imprecise language that any lawyer worth his or her salt could use to shut down science-based decision making at federal agencies by tying up the rule-making process in endless challenges.

Let’s take a look at lead. The science is clear here. There is no safe blood level of lead. According to the EPA, lead poisoning can cause slowed growth, lower IQ, behavior and learning problems, and more. In the 1970s, it became increasingly clear that lead exposure resulted in negative health effects.

Science is a critical component of policymaking, but Senator Lankford's BEST Act is a solution in search of a problem.

Science is a critical component of policymaking, but Senator Lankford’s BEST Act is a solution in search of a problem.

Rather than accept the growing weight of this scientific evidence, the lead industry started to use manufactured counterfeit science to cast doubt on the impacts of lead exposure and the acceptable amount of lead in blood.

Now if the “BEST Act” had been the law of the land when the federal government began to regulate lead, the lead industry could have used this counterfeit science to challenge EPA regulations on the grounds of “degree of clarity” and “variability and uncertainty” (among other things), forcing the agency into endless litigation over settled science. This could have ultimately prevented the agency from limiting lead exposure, especially among vulnerable populations like children.

Likewise, the tobacco industry would have been able to cast doubt on the link between cigarettes and lung cancer.

The list goes on. Today, you can imagine the fossil fuel industry using the vague language to attack climate science as a justification for slowing down solutions that prevent global warming.

Heavy on problems, light on solutions

The ambiguity of the text should be enough to realize that this legislation is bad news for evidence-based decisionmaking. But there are several other issues with the legislation as well.

One major concern is subsection (h), which would result in an enormous resource drain for agencies at a time when budgets are decreasing. Agencies would be required to divert additional resources to make public a number of documents and information, which, as we know from our fight against the HONEST Act, costs time and money.

Another major issue is the fact that this legislation would freeze science standards the way they are right now, killing the innovation and flexibility that agencies have now to consider new forms of research in their decisionmaking. As agencies begin to regulate new technologies like autonomous vehicles, they need to have the ability to consider the most cutting-edge research out there, which might include new scientific methods and models.

More importantly for human health, as the EPA looks to implement the updated chemical safety law, it needs to have the ability to utilize the best and most up-to-date scientific and technical information without having to worry about being sued, which was the problem with the original TSCA bill. Under the original chemical safety law passed in the 1970s, the EPA could not even regulate asbestos, a known carcinogen, because industry kept suing the agency. If the BEST Act were to become law, we could expect more of the same.

A wasted opportunity

Agencies are already basing their policy decisions on the best available science. They have to. If an agency did not issue a public health protection or a worker safety standard based on strong evidence, then the agency would be challenged in court, and probably forced to vacate the regulation.

Instead of promoting legislation like the BEST Act, what Sen. Lankford could do to improve the use of science in policymaking is ensure that agencies like the EPA, CPSC, Department of Energy, and others, are well funded and have the resources necessary to fulfill their respective science-based missions.

There is no disagreement among anyone (well, almost anyone) that science has an important role to play in federal policymaking and that the decisions made by agencies to implement the Clean Air Act, the Endangered Species Act, the Consumer Product Safety Act, and others, all need to be rooted in the best scientific and technical information that is available. We all want science to help ensure that our health and safety are protected, that the drugs and medical devices we use are safe and effective, that the food we eat is free of disease, that our drinking water is clean, and more.

If anything, the BEST Act would take science out of the hands of scientists, and into the hands of politicians, lawyers, and judges. Sen. Lankford’s legislation is misguided and simply a solution in search of a problem. While there is always more to learn about a scientific issue, the ideas in this proposal should not be used as an excuse not to act and protect the public from public health, safety, and environmental threats.