United States: Into The Light Or Fade To Black? EPA Administrator Pruitt's Proposed Secret Science Rule

On April 30, 2018, the Environmental Protection Agency (EPA) published in the Federal Register a controversial proposed rule seeking to restrict the types of scientific research and findings that the EPA can consider in formulating new environmental regulations.1 Increasingly embattled EPA Administrator Scott Pruitt announced the new rule on April 24, 2018, during an event that was closed to the media. During the announcement, Pruitt placed the impetus for the proposed rule on "transparency" and stated that the move would end "the era of secret science at EPA." The proposal would allow the agency to use and rely upon only scientific studies where the underlying raw data and methodology is publicly available. Critics, including former EPA Administrator Gina McCarthy and scientists, say that the proposed policy change would prevent the EPA from complying with the mandate to consider the "best available science" when preparing a rulemaking under various statutes, including the Toxic Substances Control Act (TSCA) and the Safe Drinking Water Act (SDWA). Further, critics note that the rule threatens public-health research and the underlying privately protected health information, as well as confidential business information, which form the basis for many important pollution and human health-related protections. Given the disparity between Pruitt's claims about the rule's purpose and the criticisms regarding the rule's potential effects, it remains to be seen who this proposed rule would benefit and whether it will actually bring important issues of integrity to light or if the rule may actually leave the EPA in darkness with respect to important scientific findings.

Highlighting the divisive nature of the proposal, criticism has also come from within the political ranks of the agency. Specifically, Nancy Beck, Deputy Assistant Administrator of the EPA's Office of Chemical Safety and Pollution Prevention, indicated that the rule would "jeopardize our entire pesticide registration/re-registration process" and could affect all risk evaluations under the TSCA, according to an email that was recently obtained under an open-records request. Discussing proprietary business data that would be banned from consideration under the proposed rule, Beck states that the data is "extremely valuable, extremely high quality, and NOT published," highlighting the importance of nonpublicly available data in the agency rulemaking process. Pruitt, however, maintains that the rule is warranted because "the ability to test, authenticate, and reproduce scientific findings is vital for the integrity of the rulemaking process." Critics argue that this statement disregards the importance of long-term studies or real-life situations that would be impractical and/or unethical to reproduce, such as the 1993 Six Cities Study that linked air pollution and mortality in the United States and monitored the 2010 Deepwater Horizon oil spill in the Gulf of Mexico.

Proponents of the rule have not identified which specific industries or other interest groups have the most to gain from the proposed rule, although the scope would be broad and would have the potential to affect every new rulemaking that relies on scientific data. Steve Milloy, a Trump EPA transition team member who aided in orchestrating the new rule, maintains that "junk science" has "fueled overregulation by the EPA for years" and that the proposal would resolve this issue by "bring[ing] science into the sunlight." If finalized, the proposed rule faces inevitable legal challenges, especially in light of prior decisions, such as the 2002 American Trucking Associations ruling in which the U.S. Court of Appeals for the District of Columbia Circuit sided with the EPA's contention that obtaining and publicizing all the relevant data underlying the air pollution standards "would be impractical and unnecessary." John Walke, the clean-air director for the Natural Resources Defense Council, said in an interview that the contradictory approach of the proposed rule is "the very definition of an arbitrary agency action."

Footnote

1 The proposed rule is open for comments at the following link until May 30, 2018: https://www.federalregister.gov/documents/2018/04/30/2018-09078/strengthening-transparency-in-regulatory-science

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