The EPA tweaked its proposed “secret science” rule on Tuesday, broadening its reach to cover not just rulemakings but also “influential” scientific information.
The proposed Environmental Protection Agency rule (RIN:2080-AA14), officially called “Strengthening Transparency in Regulatory Science,” was first floated in 2018, and would prevent the agency from considering studies that aren’t or can’t be made public.
One significant change in the agency’s supplemental notice of proposed rulemaking expands the rule’s scope to cover any “influential scientific information,” even if that information isn’t used in crafting regulations.
“Influential scientific information means scientific information the agency reasonably can determine will have or does have a clear and substantial impact on important public policies or private sector decisions,” the EPA wrote.
Betsy Southerland, a career EPA water official who left the agency in 2017, said that change could mean that, for example, the EPA couldn’t cite a study about sea level rise in coastal communities if the study relies on a proprietary model that’s not available for free—"even if it’s not used to regulate anything.”
Another tweak narrows the administrator’s ability to grant exemptions from the proposed rule. The supplement clarifies that that exemption may be granted in cases where compliance is “impracticable because technological barriers render sharing of the data or models infeasible.”
EPA Administrator Andrew Wheeler on Tuesday said the changes “will ensure that the science supporting the agency’s decisions is transparent and available for independent validation while still maintaining protection of confidential and personally identifiable information.”
The EPA has justified the rule by saying it is simply an effort to make regulatory science more transparent and reproducible by others.
Patching Legal Holes
Agencies typically use supplemental notices to patch legal holes in their rule proposals, Southerland said. But in her view, “rather than fixing the flaws in EPA’s proposed rule, this supplemental notice compounds the damage done.”
The approach embodied in the original proposed rule marks a sharp change from the EPA’s decades-old approach to using science in rulemaking.
The proposal has raised the ire of environmentalists who say it would neuter the agency’s ability to regulate because it wouldn’t be able to use epidemiological studies that often rely on private medical information. Scientists regularly use anonymous data supplied by millions of Americans to conduct research into topics like chemical exposure and industrial cleanup.
The agency also asked for public comment about whether to use its “housekeeping authority” independently—or in conjunction with other statutory provisions—as legal authority for issuing the rule.
As the New York Times first reported, a draft rule showed the EPA wanted to rest the science rule on the Federal Housekeeping Statute, which authorizes heads of federal agencies to issue regulations on internal governance and operations, such as employee conduct or preservation of records.
Critics of the rule have said they don’t understand how that language gives the EPA the authority to issue the science proposal.
The EPA’s science advisers have been working on a final report to Wheeler, outlining objections and suggested changes to the rule. The agency isn’t required to take the board’s recommendations.
Jennifer Orme-Zavaleta, the EPA’s principal deputy assistant administrator for science, told the House Science, Space, and Technology Committee last November that the agency was working on a supplemental proposal in response to some 600,000 comments it had received about the plan.
The EPA says it anticipates promulgating a final rule later this year, and is taking comments from the public on its supplemental notice for 30 days.
—With assistance from Jennifer A. Dlouhy (Bloomberg News).