Climate 411

Regulatory Accountability Act would wrap red tape around our most important health and safety protections

By Martha Roberts / Published: May 10, 2017

(This post was co-authored by EDF legal Fellow Rosalie Winn)

New legislation introduced in the Senate threatens to undermine critical public health, safety and environmental protections through paralysis by analysis.

The Regulatory Accountability Act, recently introduced by Senators Rob Portman of Ohio and Heidi Heitkamp of North Dakota, would tie up essential safeguards in enormous amounts of red tape – putting at risk longstanding protections in child safety, food safety, auto safety, and other areas that Americans depend on and often take for granted.

If the Regulatory Accountability Act were to become law, common sense new safeguards would have to make it through a mind-boggling series of analyses before they could begin to protect Americans.

We’ve illustrated this recipe for paralysis by analysis in this diagram:

Here’s a small sample of important safety measures — recent or in progress — that would get tied up in red tape under this bill’s approach:

We’ve written before about how the Regulatory Accountability Act would stymie agencies’ ability to address public concerns.

Important protections would face time-consuming, costly new burdens – burdens that would fall on the public, on businesses, and on anyone trying to participate in the decision-making – while giving an advantage to big-money interests who can afford expensive lawyers.

The Regulatory Accountability Act would allow opponents of health and safety protections to delay and obstruct the safeguards they don’t like, while leaving all Americans more vulnerable.

Posted in Health, News, Policy / Comments are closed

Scott Pruitt wants to end his own Clean Power Plan lawsuit—but can’t set aside EPA’s duty to protect the public from climate pollution

By Martha Roberts / Published: May 4, 2017

(This post was co-authored by Tomas Carbonell)

Before he became Administrator of the Environmental Protection Agency (EPA), Scott Pruitt was relentless in suing to oppose the Clean Power Plan, America’s first-ever nationwide limits on carbon pollution from power plants.

So relentless, in fact, that as Attorney General of Oklahoma he brought suit four times to block these common sense, cost-effective protections—including litigating to block the proposal, before the Clean Power Plan was even finalized.

Given that history, you’d think that Pruitt would be eager to for the U.S. Court of Appeals for the D.C. Circuit Court to continue the current litigation over the Clean Power Plan, which Pruitt helped initiate when he was Attorney General.

Instead, the Trump Administration launched a full-court press to stop the court’s deliberations in their tracks.

The administration filed a motion on March 28 asking the court to suspend the litigation indefinitely – almost a year after the last briefs were filed in the case, and more than six months after oral argument took place before the full en banc court.

Why the sudden aversion to the court considering the case, after such a long history of litigating?

Perhaps Pruitt was afraid that the court would see the Clean Power Plan for what it is – a common sense and achievable plan, firmly grounded in the law and in science, which responds to the most urgent environmental challenge of our time.

Pruitt repeatedly argues that the reason to repeal the Clean Power Plan is because it is “illegal.” Without a D.C. Circuit opinion, all we have are his own claims on that point – and maybe Pruitt prefers it that way, given his poor record in past legal challenges to common sense EPA safeguards.

Whatever the reason, Pruitt pressed ahead to stop the very same case he was instrumental in creating. Last week, the D.C. Circuit partially granted his request. The court put the Clean Power Plan litigation on hold for 60 days, and asked for more information so it can decide how to handle the case going forward.

EPA has a duty to protect Americans from dangerous climate pollution

While last week’s order is disappointing, it has not changed the fact that EPA has a clear duty to act under our nation’s clean air laws to protect the public from harmful climate pollution. That duty is enshrined in three separate Supreme Court opinions that confirm EPA has the authority and responsibility to address climate pollution under the Clean Air Act.

EPA’s obligation to address climate pollution under the Clean Air Act is a settled question in American law. And EPA’s history of successfully addressing climate pollution from cars and other sources speaks for itself.

The Clean Power Plan itself has a rock solid legal and technical foundation – as recognized by a huge and varied coalition of supporters including former Republican EPA Administrators, the attorneys general of eighteen states, legal experts who helped draft the Clean Air Act, and the nation’s leading experts on the power grid.

As these experts recognize, the Clean Power Plan relies on strategies that are already being deployed successfully across the power sector—continuing and amplifying a transition to low- and zero-carbon energy that is reducing climate-destabilizing pollution while bringing jobs and economic opportunities to communities across the country. America’s clean energy sector is a rapidly growing $200-billion industry that employs 3.3 million Americans.

Regardless of any legal maneuvers, the fundamental truth remains – EPA has a duty to act to protect the public from dangerous climate pollution. Given the clear and present threat that climate change poses to the well-being of communities across America, this duty is urgent.

Posted in Clean Air Act, Clean Power Plan, EPA litgation, News, Policy / Read 1 Response

The Misguided Regulatory Accountability Act

By Martha Roberts / Published: April 4, 2017

00001-3-e1488835368971 (1)Many of the features of the Regulatory Accountability Act render it a disastrous piece of legislation for public health, safety, and the environment. By tying up essential safeguards in enormous amounts of red tape, the legislation would covertly undermine longstanding protections for child safety, food safety, auto safety, and other broadly shared values.

But the key problem is not just that the Regulatory Accountability Act would impose needlessly convoluted, burdensome requirements on federal agencies: it is that it would impose needlessly convoluted, burdensome requirements that we know have failed in the past.

The Regulatory Accountability Act would resurrect many of the worst features of the former, failed Toxic Substances Control Act (TSCA). TSCA was supposed to protect the public from dangerous chemicals, but for many years—before the recent enactment of reforms aimed at curing its substantial defects—it made regulatory decision-making so burdensome, that it effectively prevented regulators from doing their jobs.

The U.S. Environmental Protection Agency’s (EPA) failed attempt to regulate asbestos under the pre-reform TSCA offers a telling example of how important safeguards are stymied under this decision-making framework. Over 25 years ago, EPA had tried to employ TSCA to protect the public from asbestos. The Agency spent 10 years analyzing asbestos’ effects on health and considering policy options along with their economic implications. After this exhaustive investigation, documented in over 45,000 pages of supporting materials, EPA issued a final rule that called for a phased-in ban on the use of asbestos in commercial products.

But EPA’s efforts to protect the public were rejected. Asbestos manufacturers sued, contending that EPA’s meticulous decision-making was still inadequate to meet the onerous standards of TSCA. A court agreed, vacating the rule in 1991 on the basis that “EPA failed to muster substantial evidence to support its rule” under TSCA’s mandates—despite the Agency’s voluminous record justifying a phase-out of asbestos. Following this ordeal, EPA all but gave up, never again trying to ban a chemical under the old TSCA.

In the years following the asbestos fiasco, broad agreement began to emerge that TSCA was a failure due to its inability to protect Americans and to provide certainty to businesses. In a bid to address these deficiencies, Congress finally reformed TSCA last year through legislation that was passed with overwhelming bipartisan support.

The Regulatory Accountability Act would reverse this progress, with implications far beyond TSCA—major aspects of the Regulatory Accountability Act would resurrect features of the pre-reform, failed TSCA and apply them to all federal safeguards. That bears repeating:  passage of the Regulatory Accountability Act would impose requirements similar to those that had doomed the old TSCA and extend those requirements to all federal agencies, with detrimental implications for the development of new food safety requirements, veterans’ care standards, pollution controls, and other essential protections for public health, safety, and the environment. I discuss two key examples below.

First, the Regulatory Accountability Act would impose an unworkable, cost-based decision standard, setting up agencies for paralysis by analysis that would obstruct protections for Americans.

The pre-reform TSCA demanded that EPA prove it had selected the “least burdensome” regulatory option when promulgating a rule. If EPA had wanted to adopt an option any more burdensome than the “least burdensome” one—for example, banning the sale of asbestos, instead of just labeling asbestos-containing products—TSCA required that the Agency perform a full risk analysis and cost-benefit analysis of every less burdensome alternative, and prove each alternative was insufficient to address the risk. These requirements imposed evidentiary and analytic burdens on EPA that proved impossible to meet, effectively tying the Agency’s hands with respect to protecting the public from hazardous chemicals.

The newly reformed TSCA eliminated all of these problems in the service of regulatory efficiency and certainty. Under the reformed statute, EPA is required to demonstrate that it has considered key factors—including costs and risk—and has reached a rational conclusion. But it is not required to prove that its decision meets a specific cost-based decision metric, as it was under the pre-reform TSCA.

Yet the Regulatory Accountability Act would revive the pre-reform TSCA approach, imposing an onerous analytic cost-based standard for major protections. All federal agencies generally would be required to prove that their rule met the specific analytic standard laid out in the Act. The Act would also require agencies to consider and analyze substantial alternatives or other responses identified by interested persons, without imposing any clear limit on how many alternatives that would entail, and regardless of whether information concerning those alternatives was reasonably available. In addition, for major or high-impact rules, agencies would have to conduct formal cost-benefit analysis and other analyses on each such alternative. Any deviation from these nitpicky procedures, meanwhile, could prompt a court to toss out the promulgated regulation, regardless of the threat to the public as result of the regulation’s demise.

A second example of how the Regulatory Accountability Act would resurrect failed features of the pre-reform TSCA law would be through its imposition of a requirement on agencies to hold needless, burdensome public hearings. The pre-reform TSCA allowed any person to request a hearing on any rule. These hearings allowed for witnesses, cross-examinations, oral presentations, and other onerous, unnecessary hearing procedures to resolve material issues. This feature of the statute created a powerful opportunity for critics to slow down the rulemaking process, and it duplicated many other aspects of the law that already provided ample opportunity for the public to comment and provide feedback. Not surprisingly, this requirement was thoroughly rejected and excised from the new, reformed TSCA.

Nevertheless, the Regulatory Accountability Act would reinstate this failed requirement and apply it broadly to the development of all government safeguards. Under the bill, any person would be able to request a hearing on any major or high-impact rule, except in certain narrow circumstances. EPA would have to hold a hearing if any factual issue was in dispute—which is virtually always the case for someone. With this approach, attorneys would argue over science-based determinations made by agency scientists in needless show trials. Any individual seeking to delay a rulemaking could use this provision to draw out and delay protections for Americans.

The Regulatory Accountability Act may sound innocuous, but it puts our health, safety, and environment at risk. Imagine a world where efforts to update food safety requirements in the face of a pressing health threat were stymied. Or attempts to establish new protections after a disaster like the Deepwater Horizon oil spill were thwarted. Or efforts to protect the public from asbestos were derailed.

This is the world that the Regulatory Accountability Act would create, across all areas of government. This blandly titled bill is deeply flawed and deeply problematic—a sneak attack on essential protections.

This post originally appeared  on Reg Blog.

Posted in Health, Policy / Comments are closed

These Facts Underscore Why the Clean Power Plan is the Right Path Forward for America

By Martha Roberts / Published: March 10, 2017
18 states, the District of Columbia, 60 municipalities and 11 utilities have filed in support of the Clean Power Plan

18 states, the District of Columbia, 60 municipalities and 11 utilities have filed in support of the Clean Power Plan

According to news reports, we may soon see an executive order designed to make the U.S. Environmental Protection Agency (EPA) revoke the Clean Power Plan, America’s first-ever nationwide limits on carbon pollution from power plants.

Revoking the Clean Power Plan would be monumentally bad public policy, placing our families and communities at greater risk from the dangers of climate change and threatening America’s vibrant clean energy potential.

But to fully understand all the reasons revoking the Clean Power Plan is the wrong choice, it’s important to dig into the facts – which demonstrate that the Clean Power Plan is broadly supported, bolsters economic vitality, and fosters America’s tremendous momentum in reducing carbon pollution from the power sector.

It’s especially important to dig into the facts now, because we can’t have confidence in what we’ll hear from EPA Administrator Scott Pruitt whenever this announcement is made.

  • Yesterday, in an interview with CNBC, Pruitt denied that carbon dioxide is a primary contributor to global warming — contradicting NASA, VOAA, and well-settled science. Pruitt is known for mischaracterizing the science of climate change, doubling down in his written Senate testimony on some of the most widely debunked and discredited arguments put forward by climate skeptics.
  • Pruitt has also repeatedly mischaracterized EPA’s rock-solid legal authority to address climate pollution – even though it’s supported by three straight Supreme Court opinions affirming that duty.
  • Last week, it emerged that he misled the Senate during his confirmation process by falsely stating that he did not use his personal email account for official business.

Pruitt also has a long history of interwoven ties with big fossil fuel interests that stand to gain from undercutting common sense protections like the Clean Power Plan. He’s even been identified as leading an “unprecedented, secretive alliance” with them to oppose important safeguards.

So let’s dig in to the real facts on the Clean Power Plan, and better understand what’s at stake:

The Clean Power Plan Has Broad, Diverse Support Across the Country

The Clean Power Plan would reduce climate-destabilizing pollution from power plants – our nation’s largest source of this pollution – to 32 percent below 2005 levels by 2030.

It would save lives and protect public health as well, avoiding an estimated 3,600 premature deaths, 90,000 childhood asthma attacks, and 300,000 missed school and work days each year by 2030.

Its approach reflects the power sector’s already ongoing, market-driven transition to low cost, low carbon electricity, and is firmly anchored in law.

So it’s not surprising that it enjoys widespread support. In court, the Clean Power Plan is supported by a broad and diverse coalition that includes eighteen states and sixty municipalities across the country; power companies that own and operate nearly ten percent of the nation’s generating capacity; leading businesses like Apple, Google, Mars, and IKEA; public health and environmental organizations; consumer and ratepayer advocates; faith organizations; and many others.

Since November 2016, nearly 900 businesses and major investors have called on the new Administration to continue policies that address climate pollution —underscoring that “failure to build a low-carbon economy puts American prosperity at risk.” Signatories include DuPont, Gap Inc., General Mills, Hewlett Packard, Hilton, IKEA, Johnson & Johnson, The Kellogg Company, Levi Strauss & Co., L’Oreal USA, NIKE, Mars Incorporated, Pacific Gas and Electric, Schneider Electric, Sealed Air, Starbucks, Unilever, and many others. These signatories collectively earn almost $1.15 trillion in annual revenue, are headquartered across 44 states, and employ about 1.8 million people.

Large majorities of Americans, in red and blue states alike, support the Clean Power Plan and other actions to protect our families and communities from climate pollution. In a recent nationwide poll, 70 percent of Americans expressed support for the Clean Power Plan – including two-thirds of respondents in states that are challenging these vital protections.

Low-Carbon Energy Helps Fuel a Vibrant Economy

Reducing carbon pollution will create jobs and economic benefits across the country.

For everyday consumers, the Clean Power Plan incentivizes energy efficiency investments that save money. EPA estimates that by 2030, the average American family will save approximately $85 every year on their electric bill.

It also bolsters use of low-carbon power sources — which are already driving growth and vitality across the country. More than two million Americans now work in energy efficiency jobs, while solar and wind employ almost half a million people. Collectively, this represents more than twice the number of Americans employed through fossil fuel generation.

Clean energy investments frequently create jobs in low-income and rural communities that stand to benefit most. The American Wind Energy Association estimates that 70 percent of wind farms are located in low-income counties, and that wind developers currently pay $222 million a year in lease payments to U.S. farmers, ranchers and other rural landowners. The bi-partisan Governors’ Wind and Solar Coalition, led by Rhode Island Governor Gina Raimondo and Kansas Governor Sam Brownback, recently sent a remarkable letter to President Trump highlighting the impressive contributions of wind and solar to the American economy —particularly to low-income rural communities.

The Clean Power Plan Builds on — and Secures the Promise of — America’s Transition to Low-Carbon Energy

The Clean Power Plan’s targets are eminently achievable thanks to the powerful expansion of low-cost clean energy, which is increasingly out-competing other sources of electricity in the market. Rolling back the Clean Power Plan puts at risk America’s tremendous momentum and progress in reducing carbon pollution from the power sector.

Carbon pollution from the power sector has decreased by more than 20 percent since 2005, meaning that we’re already about two-thirds of the way toward meeting the Clean Power Plan requirements for 2030. In fact, most states that are litigating against the Clean Power Plan are on track to meet its requirements. Having the Clean Power Plan in place provides a policy framework and establishes an important, stable signal for investors—one that’s essential to make sure we build on the progress so far, and make strategic, sensible decisions for the long-term.

Clean energy is increasingly out-competing other sources of electricity — in particular, the market is seeing a surge in renewable energy development. One report estimated that 85 gigawatts of new wind and solar generation capacity will be added to the grid between 2016 and 2021. Thanks to dramatically declining costs, a recent extension of federal tax credits, and sustained technological advances, low carbon electricity is the increasingly preferred energy source. For example, from 2007 through 2015 alone, the price of solar photovoltaic modules fell by more than 80 percent. Meanwhile, coal-powered electricity is increasingly uneconomic compared to other forms of electricity, even without considering its substantial carbon pollution burden.

Consider these statements from power sector officials affirming their commitment to greater reliance on low-carbon power sources – made after the Nov. 2016 election:

  • “It can’t just be, ‘We’re going to get rid of these regulations, and you guys can party until the next administration comes,’” Cloud Peak Energy Vice President Richard Reavey said. “There are serious global concerns about climate emissions. We have to recognize that’s a political reality and work within that framework.”
  • “We’ve always had a point of view at Southern that there’s a reasonable trajectory in which to move the portfolio of the United States to a lower carbon future,” said Southern Company CEO Tom Fanning. “There’s a way to transition the fleet now.” In a later interview, Fanning added: “It’s clear that the courts have given the EPA the right to deal with carbon in a certain way.”
  • “Regardless of the outcome of the election,” said Frank Prager, Xcel Energy’s Vice President of Policy and Federal Affairs, “Xcel Energy will continue pursuing energy and environmental strategies that appeal to policymakers across the political spectrum because we are focused on renewable and other infrastructure projects that will reduce carbon dioxide emissions without increasing prices or sacrificing reliability.”

And consider these actions by power companies to expand their renewable investments while phasing out high-carbon generation, putting them in a solid position to comply with robust carbon pollution regulations:

  • Florida Power & Light (FPL) just announced it will install eight new solar power plants this year, building on its existing plants to expand reliance on low-carbon power sources. At the end of December 2016,  FPL announced plans to shut down the recently-acquired 250-megawatt Cedar Bay coal plant at the end of the year. “I’m very proud of our employees for proposing this innovative approach that’s environmentally beneficial and saves customers millions of dollars,” said CEO Eric Silagy. FPL plans to replace the retired power with natural gas and solar — the company added 224 megawatts of solar capacity in 2016.
  • On December 30, 2016, Southern Company announced an agreement with Renewable Energy Systems America to develop 3,000 megawatts of renewable energy scheduled to come online between 2018 and 2020. The agreement comes as Southern Company continued to boost its renewable portfolio with the acquisition of 300 megawatts of wind power in late December, bringing its total to more than 4,000 megawatts of renewable generation added or announced since 2012.
  • PNM Resources spokesman Pahl Shipley said the company has no change in plans for replacing generation from retiring two units at a New Mexico plant, totaling 837 megawatts of capacity, with solar and nuclear power.

These developments make clear that continued progress towards a low-carbon future is within reach. The Clean Power Plan provides a sensible framework to help ensure we protect our communities and achieve the tremendous potential of America’s low-cost, low-carbon electricity resources.

The Clean Power Plan Provides a Path Forward that Will Protect and Strengthen American Communities

Let’s hope Scott Pruitt listens to the facts – and turns away from wrong-headed plans to stymie common sense climate protection. Moving forward on the Clean Power Plan will ensure the continuation of tremendous momentum towards a low-carbon future, save lives and improve public health, and help protect American families and communities from the worst ravages of climate change.

The Clean Power Plan is the right path forward for a stronger and safer America.

 

 

 

 

Posted in Clean Air Act, Clean Power Plan, EPA litgation, News, Policy, Setting the Facts Straight / Comments are closed

Misguided Regulatory Accountability Act Will Increase Red Tape, Obstruct Vital Safeguards for Millions of Americans

By Martha Roberts / Published: March 6, 2017

New legislative proposals on the Hill put long-standing public health, safety and environmental protections at risk.

These so-called “regulatory reform” efforts sound innocuous, but they would dramatically increase red tape and industry lobbyist influence – eviscerating bedrock statutory protections for American communities.

Take just one example – the Senate version of the Regulatory Accountability Act from 2015, which is widely seen as a potential foundation for legislation in this new Congress.

With this legislation, the development of any new protections – new clean air protections, new food safety requirements, new care standards for veterans, new child safety regulations – would be subject to a range of needless additional hurdles. And if the protections couldn’t get through the hurdles in time, then the whole process would have to start again, from scratch. Important safeguards would face time-consuming, costly new burdens – burdens that would fall on the public, on businesses, and anyone trying to participate in the decision-making process.

These additional, costly hurdles will give powerful interests that can afford expensive lawyers a leg up in the rulemaking process – allowing them to delay and obstruct protections they don’t like, as well as boosting their chances of fighting in court – while tilting the playing field against everyone else.

Here’s a head-spinning diagram showing what the process for drafting a new safeguard would look like if this proposed legislation became law:

Here are just some of the burdensome new requirements included in the 2015 version of this legislation:

Paralysis by Analysis to Derail Vital Safeguards

The Regulatory Accountability Act would impose needless analytic requirements on proposed new protections that would add a heavy burden without any benefit. Agencies already exhaustively assess the costs and benefits of new protections, but this legislation would require agencies to analyze and compare a potentially limitless number of proposed alternatives to the plan they think is best, using a variety of new, additional analyses.

A new crib safety regulation, for example, put forth in response to evidence of a real threat to babies, might have to wait years while an agency completed a host of vague, undefined analyses for each alternative proposed by industry — as detailed in the diagram above. A court would then have broad authority to scrutinize the analyses’ adequacy, giving industry attorneys another chance to challenge and block important safeguards.

Thumb on the Scale Against Protecting Americans from Serious Harm

Not surprisingly, within the very long list of additional requirements in the Regulatory Accountability Act, there’s barely a hint of considering any of the benefits of health and safety protections – healthier and safer lives, stronger communities, new jobs in clean energy and health and safety fields, among many others.

Least Common Denominator

Under the Regulatory Accountability Act, at the initiation of rulemaking an agency would have to solicit alternatives for accomplishing the objectives of the agency “with the lowest cost.” For many rules, the agency would generally be required to adopt the least-costly option considered – regardless of the benefits of the different options.

Under this reasoning, a drinking water protection that imposes no costs would beat out one that imposes $1 in costs, even if the latter yielded substantially better protection and major health benefits.

While the Regulatory Accountability Act would permit an agency to adopt a rule that is “more costly than the least costly alternative,” it would only be authorized where the agency has completed additional burdensome analysis and explanation that would be subject to challenge in court – creating obvious pressure to default to the least protective approach.

More generally, this rigid requirement would override existing laws and leave safeguards more vulnerable to challenge in court from those opposed to protection.

Science on Trial

The Regulatory Accountability Act would allow anyone to request a formal hearing on the record with cross-examination of the parties over disputed facts. This addition would amount to a trial-like procedure at the proposal stage, and could be invoked in a wide range of circumstances. Echoing a theme of this legislation, the burden of proof would be against protection. There’s no clarity about what counts as a disputed fact – meaning that this burdensome, needless exercise could be invoked to rehash long-settled issues about health and environmental risks.

Consider a new air pollution protection – EPA might now be subject to an entire hearing procedure to re-prove that smog causes asthma attacks and other lung diseases. This requirement would add major delays and costs to implementation of any protection, and would put industry and other moneyed interests at a considerable advantage over organizations and individuals who are less able to retain expensive lawyers and expert witnesses.

Less Science, More Cost

The Regulatory Accountability Act includes new requirements for the publication of any and all data that an agency requests, receives, or relies on during a rulemaking process. Transparency is important – and it is a foundation of current rulemaking processes. But these requirements have significant similarities with the misguided Secret Science bill that has been considered in past Congressional terms in that it is incompatible both with ethical and legal requirements to keep personal health records confidential and is designed to obstruct consideration of major rigorous peer reviewed studies that properly rely on but do not disclose private individual health data.

Safeguard Guillotine

Under the proposed legislation, if an agency cannot meet newly imposed deadlines for finalizing a rule, it gets one extension. If the agency misses the second deadline, the proposal is null and void, and the agency must start over from scratch. No exceptions — not for veterans, not for airplane safety, not for children’s health, not for common sense, none. The agency must re-propose and start over from square one.

These arbitrary deadlines would be challenging to meet even under current procedures. With all the requirements imposed by this bill, anyone opposed to a new safeguard would have innumerable opportunities to drag out the process and force an agency to miss this arbitrary deadline – derailing vital safeguards and sending expert agencies back to the drawing board.

The Result: More Red Tape, Less Protection for Our Communities and Families

Why are supporters of this legislation arguing for more red tape?

The Regulatory Accountability Act is not designed to streamline and improve the regulatory process. It’s designed to bog down development of any new safeguard — any new protection. This bill offers countless new hurdles that can block new safeguards, or create new grounds for litigation and lawsuits. For big polluters, that would be great news.

For everyone else, this legislation would mean more delay, more burden, and more uncertainty in establishing basic protections. Many of these requirements substantially increase barriers for ordinary citizens and small businesses to participate and inform the decision-making process. The result, in practice, would be that big-money interests would have a big edge in influencing final decisions, at the expense of small businesses and everyday citizens.

 

Posted in Clean Air Act, News, Policy, Setting the Facts Straight / Comments are closed

Less Science, More Cost: Why the Misguided “Secret Science” Bill Is Bad Policy

By Martha Roberts / Published: February 7, 2017

shutterstock_3243574012It’s a good idea for the U.S. Environmental Protection Agency (EPA) to rely on the best, most up-to-date science in making its decisions.

Seems like a fairly basic point — but recent legislation aims to thwart EPA’s ability to do so.

Rep. Lamar Smith’s (R-TX) “Secret Science Reform Act” will reportedly be back again this year and soon be on the move.  The bill would prohibit EPA from finalizing an action unless “all scientific and technical information relied on to support” the action is “publicly available online in a manner that is sufficient for independent analysis and substantial reproduction of research results.”

Like so many misleadingly-named bills of the past, this bill tries to sound like common sense – but in fact, it would do great damage to human health and the environment, as well as to a predictable regulatory environment for business.

A Blindfolded EPA

Here’s the first problem: to make informed decisions, some of the data EPA needs to use can’t be made public without doing damage to real people or to businesses.

Almost all of EPA’s work touches on issues of human health — relying, for example, on research that uses health records of asthma sufferers and their asthma attacks to see if they are associated with air pollution.

Data that involve private medical records of individual patients cannot – ethically or legally – be made fully public.

Here’s another example: businesses sometimes claim that information about their operations is legally protected from public release because it is “confidential business information.”

But under this legislation, EPA would be barred from relying on any study or any analysis unless they made all the underlying information publicly available.

What would be the real-world result for the safety of our air and water and the products we use?

Under this legislation, EPA decision-making would grind to a halt. For instance:

  • EPA would no longer be able to establish limits on emissions of hazardous air pollution into our air if a business claimed that any of the information EPA used to create the Clean Air Act protection was “confidential business information” that could not be released.
  • EPA could no longer issue national air quality standards that rely on studies about the health impacts of pollution if the studies relied in any part on confidential patient health data.
  • EPA could not make decisions about the safety of chemicals because such decisions would necessarily rely on information representing industry trade secrets.

EPA properly relies on peer-reviewed scientific research, and industry studies and data, to inform its efforts to protect public health and the environment. Particularly for health research, studies often involve confidential data that researchers are prohibited by law from disclosing. This legislation would force EPA to pretend that none of this valuable research exists when making substantial agency decisions.

The end result? Our health and environment is put at risk.

Congressional Budget Office Says It Will Cost Hundreds of Millions of Dollars to Implement

Here’s a second problem: even setting aside the enormous confidentiality problems in this legislation, it would be extremely costly to implement.

The “Secret Science” bill authorizes just $1 million in expenditures per year. But the Congressional Budget Office (CBO) estimates that implementing this bill would cost approximately $1 billion to implement over the next four years — and that’s their middle estimate.

CBO estimates that EPA relies on about 50,000 scientific studies every year to accomplish its mission — so providing public online access to all of the underlying data and information is an expensive proposition.

Alternatively, if EPA presses ahead on the basis of a smaller number of studies, EPA protections would be less well-informed and may not reflect the latest science. They could also be inaccurate or incomplete — and thus more vulnerable to legal challenges that would delay the implementation of important public health protections or timely decisions affecting industry operations.

CBO’s own predicted result?

  • “CBO expects that EPA would modify its practices, at least to some extent, and would base its future work on fewer scientific studies, and especially those studies that have easily accessible or transparent data.”
  • “On balance — recognizing the significant uncertainty regarding EPA’s potential actions under the bill — CBO expects that the agency would probably cut the number of studies it relies on by about one-half … CBO estimates the incremental costs to the agency would be around $250 million a year initially, subject to appropriation of the necessary amounts. In our assessment that figure lies near the middle of a broad range of possible outcomes.”
  • “If EPA continued to rely on as many scientific studies as it has used in recent years, while increasing the collection and dissemination of all the technical information used in such studies as directed by H.R. 1030, then implementing the bill would cost at least several hundred million dollars a year.”

The challenges of meeting these huge expenses are enormous. They’re even more daunting in light of simultaneous efforts by EPA’s opponents in Congress to dramatically curtail the agency’s budget.

Bedrock Safeguards Subject to Delay and Uncertainty

Here’s a third problem: the bill would prohibit EPA from finalizing an action unless all information relied on is “publicly available in a manner that is sufficient for independent analysis and substantial reproduction of research results.” Yet for many key health studies, it could take years — decades even — to “reproduce” some key research.

Some of the most rigorous, crucial health studies are based on health data that is collected over many years — for example, studies that follow a group of people over time to understand how their health is affected by environmental conditions. Such data is how we recognized that smoking causes cancer, to cite just one example.

By their very nature, results from such “longitudinal studies,” which may involve thousands of people, cannot be readily and rapidly “reproduced” as a laboratory study on mice might be. Yet such studies, when carefully designed and executed, can be among the most powerful in shedding light on how pollution impacts our health.

The troublingly vague language in this bill could be interpreted to mean that research results can only be used if time has been allowed for reproduction of research results. This presents EPA with an array of bad options: incurring enormous delay and expense to reproduce even the most sound, rigorous studies, even when other research already supports their findings; moving ahead on the basis of limited science and ignoring crucial health insights from the latest research and from longitudinal studies; or moving ahead with the benefit of insights from these studies—but facing needless uncertainty and litigation risk due to the troublingly vague language in the bill. Whichever way, EPA’s ability to protect human health and the environment would be undermined.

Best Available Science

Why would anyone support this legislation that would force EPA to rely on less science at more cost to taxpayers?

Well, it would benefit big polluters who would be handed more ways to pick apart EPA safeguards in court — or stop their creation in the first place. But for the rest of America’s businesses, it could increase uncertainty and economic challenges, because EPA would be hindered in using the industry’s own information in making decisions. And for American families, who would be put at risk by less informed safeguards, the “Secret Science” bill is a bad idea for science and for public health.

It’s just plain wrong to suggest that EPA relies on “secret” data. EPA depends on the best, most up-to-date science – including university research and industry analyses that are available to the public, but that rely on confidential data and information properly protected from disclosure under the law and under common decency.

Update: The new version of the bill has been introduced, with very small changes, under a new title – the Honest and Open New EPA Science Treatment Act (HONEST Act)

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