Column: While faking concern for the ‘best’ science, Congress launches an attack on environmental regulations

The Republican attack on science, never far beneath the surface even during the Obama administration, has been gathering steam since the election.

Recent sallies have clothed this campaign, which is largely aimed at killing regulations that industry doesn’t like, in the mantel of a defense of “smarter” science. The idea ostensibly is to ensure that the science underlying environmental and health regulations is transparent, fully vetted, and indisputable.

But that’s deceptive: The real goal of bills introduced in the House and Senate is to make it easier for industry to tie up the Environmental Protection Agency and other federal bodies in court for months or years. The bills aim to render the rule-making process so costly and burdensome for the regulators that they’ll stop regulating at all.

“All these things are designed to grind the regulatory process to a halt,” says Andrew Rosenberg, a biologist who is head of the Center for Science and Democracy at the Union of Concerned Scientists.

Let’s examine the most recent such effort. It’s the Regulatory Accountability Act, introduced in the Senate by Sen. Rob Portman (R-Ohio) as the latest version of a measure that’s been haunting the halls of the Capitol for years. The bill would require agencies to make public “all studies, models, scientific literature, and other information” used to develop a regulation. That language tracks several other measures in the Senate and House that cloaked the goal of complicating the regulatory process by claiming to favor better science.

On the surface, this looks innocuous, even laudable. But it’s more like a wolf in sheep’s clothing. The drafters of bills requiring disclosure of raw data and analytical methodologies well know that much of this sort of documentation can’t be made public. Some of it is proprietary information belonging to scientists who developed it as part of their research. Some is personal information about human participants in studies underlying science-based rule-making.

Some measures in the House are even worse than Portman’s, though not by much. The Honest and Open New EPA Science Treatment Act, a measure introduced by Rep. Lamar Smith (R-Texas), one of Congress’ outstanding climate change deniers, would forbid the EPA to use science that is “not transparent or reproducible.” Scientists say that would make it impossible to create regulations based on, say, the 2010 Deepwater Horizon disaster in the Gulf of Mexico, because that was a one-time event. The bill, originally labeled the Secret Science Reform Act, was rechristened this year to give it the labored and cynical acronym of “The HONEST Act.”

There’s no mystery about who’s behind these efforts—it’s big business. Companies and trade groups that lobbied in favor of the House version of Portman’s bill are also major contributors to his 2016 reelection campaign to the tune of $3.3 million, according to an analysis by the Environmental Working Group.

Many of those companies and trade groups also show up in the donor lists of the 2014 and 2016 campaigns of Portman’s co-sponsor, Sen. Heidi Heitkamp (D-N.D.). Not that Heitkamp needed much impetus to support the bill, since North Dakota has become a major oil producer since the fracking boom reached the state in 2006.

The Portman-Heitkamp bill gives industry a whole new arsenal of weapons to slow down or block regulatory action. The measure would allow industry to petition for a public hearing on any proposed regulation based on any “scientific, technical, economic, or other complex factual issues that are genuinely disputed.”

But the bill doesn’t define a “genuine dispute.” Yogin Kothari of the Union of Concerned Scientists argues that this would allow any industry to produce a study that “conflicts with the accepted science on the dangers of a certain chemical or product” and thereby slow down the regulatory process. “You can always find at least one bogus study that disagrees with the accepted facts. If this provision had been around when the federal government was attempting to regulate tobacco, the industry would have been able to...put a halt to the public health regulations” that brought the industry to heel.

Although the bill allows anyone to petition for the hearing, in practice the petitioners are likely to be corporations or industry groups. If you think big business needs more influence over government proceedings, raise your hand. Anyone?

The bill also imposes burdensome requirements for cost-benefit studies for any rule deemed “major”—that is, with an annual impact estimated at $100 million or more--or “high-impact,” meaning an annual impact of $1 billion or more. These numbers look large, but in the context of a U.S. economy valued at $18 trillion, they’re minuscule.

The Regulatory Accountability Act incorporates a few improvements over its House cousins, including exemptions allowing certain data to be kept secret. But it’s worse in a key way. It takes the restrictions that Smith wishes to impose on the EPA, and extends them to all federal agencies.

Like those bills, too, the Portman-Heitkamp Act is an end-run around regulatory initiatives and laws that enjoy broad public support, such as the Clean Air Act and the Clean Water Act. So the bill erodes the ability of federal agencies to enact rules implementing those laws.

“If you put all these things together,” says Rosenberg, “you see the pattern is ‘Let’s just stop regulating.’”

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