Environment & Energy Report

‘Unusual’ White House Interest Level in EPA Science Rule Review

Dec. 19, 2019, 11:01 AM

Public interest groups say they’re encountering a surprising level of engagement from the White House regulatory clearinghouse over an EPA plan to change the way science feeds into new regulations.

The Environmental Protection Agency’s April 2018 Strengthening Transparency in Regulatory Science (RIN:2080-AA14) proposal, also known as the “secret science” rule, would bar the agency from using scientific research that isn’t or can’t be made public, a sharp break from the EPA’s decades-old approach to regulatory science.

Critics call the proposal a bid to sideline the science used to regulate drinking water, air quality, and toxic chemicals, because the EPA could no longer rely on epidemiological studies that use private medical information. But EPA defends its proposal by saying it will disclose more information for stakeholders who take part in rulemakings.

The proposal has been under review by the Office of Information and Regulatory Affairs since Nov. 12. As part of that process, OIRA has met with interested parties—and asked far more questions than is typical—said representatives of three environmental and health groups.

‘Usually in Listening Mode’

“They were asking a lot of questions about how the scientific process works,” said John Walke, director of the Natural Resources Defense Council’s clean air, climate, and clean energy program. “It was clear they had heard rejoinders and rebuttals that countered the EPA narrative from prior participants in those meetings.”

Walke said that during a Dec. 10 meeting with OIRA officials he was questioned more thoroughly than in two dozen similar meetings over a nearly 20-year career, which included a three-year stint at EPA.

Most of those who spoke to Bloomberg Environment during several weeks of reporting for this story agreed that the White House engagement in the process in this case is atypical.

“This does seem unusual,” said Tom McGarity, an administrative law professor at the University of Texas at Austin. “My experience is that they’re usually in listening mode.”

And Stuart Shapiro, a former OIRA desk officer and assistant branch chief in the Clinton and George W. Bush administrations, estimated that in at least 95% of the meetings he attended: “We just sat there and listened, maybe asked a question or two to be polite.”

‘Ridiculous’ Claim, OMB Says

But the Office of Management and Budget, which houses OIRA, denied that it’s taking an unusually close look at the secret science rule.

“OIRA meets with outside groups regularly and takes those meetings very seriously,” an OMB spokesperson, who asked not to be publicly identified, told Bloomberg Environment. “The assertion that OIRA is only ‘exceptionally engaged’ in certain meetings is ridiculous and there is no evidence whatsoever to back up that claim. This is just another attempt by eco-left environmental groups to pitch an OIRA hit piece to the press.”

Bridget C.E. Dooling, a former OIRA deputy chief, senior policy analyst, and attorney under the George W. Bush, Obama, and Trump administrations, agreed that “it’s pretty normal for government folks to ask questions in these meetings.”

The description of OIRA’s engagement in the secret science rule process is “common enough that it doesn’t surprise me,” said Dooling, now a research professor at George Washington University’s Regulatory Studies Center. She also said the questioning struck her as “within the range of normal behavior.”

‘People Post Everything on Facebook’

Matthew Davis, legislative director at the League of Conservation Voters, said he was asked half a dozen questions in his Nov. 26 OIRA meeting, including why he’s objecting to specific parts of the rule when the proposal hasn’t yet been issued, whether scientific journals don’t already require the publication of personally identifying data, and whether scientific best practices call for studies to be reproducible.

Paul Billings, national senior vice president of public policy at the American Lung Association, said OIRA staff was so engaged that his Nov. 20 meeting ran to nearly twice its scheduled half-hour time, which Billings said he has never experienced before.

Walke said that at one point during his meeting, an OIRA staffer asked why privacy is so important “when people post everything on Facebook.”

OIRA’s website as of Dec. 18 lists 12 meetings held on the proposed rule and six scheduled. All were with public interest groups.

The EPA declined to comment, saying it doesn’t weigh in on rulemakings during interagency review.

Council of Economic Advisers Involvement

All three stakeholders who spoke with Bloomberg Environment also said a representative from the White House Council of Economic Advisers attended. Participation from that level of government is rare and could signal the White House sees the rule as being especially significant, said Shapiro, the former OIRA desk officer.

But Dooling said she considered CEA’s participation to be customary.

OIRA’s level of interest could reflect anything from a desire to understand the best arguments, to preparation for responses to criticisms, said Shapiro, now a professor at Rutgers University’s Edward J. Bloustein School of Planning and Public Policy.

The intensity of the questioning also might suggest that OIRA wants to bring all the criticisms of the proposal to the surface in hopes of resolving a standoff between itself and the EPA that would require the White House to get involved, said Cary Coglianese, director of the regulatory law program at the University of Pennsylvania.

OIRA’s interest might also be linked to the fact that the rulemaking could set a precedent for how other agencies handle science, Coglianese said.

To contact the reporter on this story: Stephen Lee in Washington at stephenlee@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Renee Schoof at rschoof@bloombergenvironment.com

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