House passes bills that will make it harder for EPA to protect public health

The House of Representatives has passed two bills that, if they clear the Senate and are signed by President Trump, will make it much harder for EPA to do the important work of analyzing, warning about, and regulating health threats in the environment. The HONEST Act, introduced by House Committee on Science, Space, and Technology Chair Lamar Alexander (R-Texas), would severely limit the research findings EPA could use in creating a wide range of communications, standards, and regulations. The EPA Science Advisory Board Reform Act, introduced by Representative Frank Lucas (R-Oklahoma), would make it much harder for academic researchers to serve on the advisory boards that inform agency decisions – with the likely result that more of those seats would be filled by industry scientists – and introduce new time-consuming responsibilities for the SAB.

“Anything but an honest act”

The HONEST Act (HR 1430) states that the EPA cannot propose, finalize, or disseminate covered actions unless all scientific and technical information that supports the action is “publicly available online in a manner that is sufficient for independent analysis and substantial reproduction of research results, except that any personally identifiable information, trade secrets, or commercial or financial information obtained from a person and privileged or confidential, shall be redacted prior to public availability.” The long list of covered actions includes “a risk, exposure, or hazard assessment, criteria document, standard, limitation, regulation, regulatory impact analysis, or guidance.” Basically, this would make it much harder for EPA to undertake evidence-based actions, because they’d have to jump through a series of hoops with every piece of evidence they wanted to use.

In a post warning about the HONEST Act when it was first introduced, Gretchen Goldman of the Union of Concerned Scientists criticized the bill for misrepresenting how science works, wasting taxpayer dollars, and stifling innovation. She explains how it would tie up limited EPA resources:

Ironically, the bill is directly at odds with President Trump’s stated desire to create a more efficient government. It adds unnecessary and burdensome redundancy to the process of promoting clean air and clean water. Chairman Smith is adding red tape to the federal government, not reducing it.

The bill allows “any personally identifiable information, trade secrets, or commercial or financial information” to be kept nonpublic. Yet, the bill also allows a person who signs a confidentiality agreement—“subject to guidance to be developed by the Administrator”—to access the data if the protected information is redacted.

Do you know how much time and energy redacting government documents takes? There are entire offices in federal agencies devoted to this singular task. Federal agencies rely on a tremendous volume of data that would fall into these categories. Requiring agencies to redact specific details on large datasets would require EPA to have a much larger budget and staff. They could spend thousands of hours redacting documents for one requester. And of course, this bill is being introduced after a leaked version of President Trump’s proposed EPA budget indicated the agency could receive deep cuts.

Public access to all relevant data sounds laudable, but without a substantial increase to the EPA budget, it would result in the agency getting far less of its core work done. Maybe that’s the goal.

Goldman wraps up her post with this: “In conclusion, this is anything but an honest act by Chairman Smith. It would compromise the ability of EPA to protect our air and water. Please encourage your members of Congress to oppose this dangerous bill.”

Science Advisory Board targeted

The EPA SAB Reform Act (HR 1431) targets the agency’s Science Advisory Board, which provides scientific advice to the EPA Administrator. The SAB includes standing committees on topics such as agricultural science, drinking water, and radiation, as well as ad hoc committees and panels as needed. Currently, the majority of committee members have academic affiliations listed — e.g., 15 of 19 members of the Agricultural Science Committee and 13 of 18 on the Drinking Water Committee. Under this bill, those numbers would probably drop precipitously.

HR 1431 states, “Board members may not have current grants or contracts from the EPA and may not apply for them for three years following the end of their board term.” Given that EPA is a major funder of academic environmental research, this restriction would disqualify many leading researchers from SAB service, and make it far less appealing or practical for anyone who didn’t have a steady source of research income from another source.

Where else does research funding come from? Industries subject to EPA regulation are another source of dollars, but the scientists they fund have been known to downplay the risks of their sponsors’ products. With fewer academic researchers on SAB committees and panels, industry-sponsored scientists could come to dominate them. This bill's supporters claim it will reduce conflicts of interest, but I’m a lot more worried about scientists funded by the utility industry advising EPA on air-quality standards than I am about scientists who’ve received EPA grants. Scientists who get EPA funding are already required to recuse themselves from matters pertaining to those grants.

UCS’s Genna Reed explains that this bill also draws out the process of receiving scientific advice:

Public comment is already built into the federal advisory committee process under FACA. This bill would expand public access to an almost debilitating level. This would especially benefit industry, which tends to have greater resources with which to follow rulemaking, appear at public meetings, and write public comments. For example, one provision in the bill would require that, “if multiple repetitious comments are received, only one shall be published” and therefore count toward the administrative record. This hits directly at members of the public who sign their name to a form comment initiated by organizations like the Union of Concerned Scientists. If the thousands of form comments submitted on a certain issue are only considered as one, the voices of all of those individuals would be effectively silenced. A move like this would further stack the deck in favor of those who have money, time, and connections to submit several unique comments to have an uneven influence on the public comment process, diminishing the voice of communities most often bearing the brunt of environmental or health impacts that the SAB is charged with analyzing.

According to the bill, for each major advisory activity, the Board must convene a public information-gathering session “to discuss the state of the science” related to that activity. Just imagine the type of loop that could be triggered as the Board examines “the state of the science” on climate change or the harmful effects of a certain toxin as it prepares to meet to address some aspect of climate health or air pollution.

In addition, both the EPA, before it asks for the Board’s advice, and the Board itself would be required to “accept, consider, and address” public comments on the agency’s questions to the Board. By addressing each and every comment it receives, the SAB would have less time to actually provide scientific advice to the EPA administrator. All SAB meetings are already open to the public and transcripts made available, in accordance with FACA. The provisions contained in this legislation open up the process more than necessary, turning each scientific evaluation into a public hearing, and adding cumbersome responsibilities to the SAB’s already full plate.

Like the HONEST Act, the EPA SAB Act could reduce the amount of scientific resources available to conduct the EPA work that actually results in improved public health.

Co-opting the language of the scientists to hobble scientific work

Legislation that purports to advance transparency and reduce conflicts of interest actually making it harder for regulatory agencies to protect public health are nothing new to those who fought for scientific integrity during the George W. Bush administration (e.g., the Data Quality Act and Data Access Act). Today, the problematic bills echo the language of researchers who call for making research findings more readily available to those who can use them and warn of a “reproducibility crisis” in psychology research. The Atlantic’s Ed Yong writes:

This rhetoric exactly matches what the reproducibility and open-science movements have been saying, and it describes genuine problems in science. “They’re right that government agencies should strive to use science that people have access to,” says geneticist Michael Eisen, an open-science firebrand who is running for Senate. “The EPA is problematic when it relies on hidden industry data that people can’t evaluate, and the public has every right to be skeptical of those decisions. The best way to protect against that is to have sunshine on the data.”

But he and others say that the HONEST Act is a disingenuous solution to that real problem. In practice, it would “gratuitously handcuff” the EPA and prevent it from considering studies are necessarily less transparent, including those that use confidential medical records or proprietary information. The Act would also force the agency to do a lot of extra costly work—either redacting confidential information, or asking scientists to dredge up all the data and code from old studies. “It won’t produce regulations based on more open science,” says Eisen. “It’ll just produce fewer regulations.”

Calling for reproducibility “is a good thing if being done in an economic vacuum, but given their budget, that’s a crippling constraint,” adds Jeff Leek, a statistician at Johns Hopkins University Bloomberg School of Public Health. The Congressional Budget Office estimated that the HONEST Act would take $250 million a year to enforce, and Trump’s recent budget blueprint would slash ten times that from the agency’s pocket. “I’m very much in favor of reproducibility, but if we make those kinds of demands we need to fund them,” says Leek.

Vox’s Brian Resnick points out that the HONEST Act’s call for reproducible research is extremely thorny in practice:

The stated intent of the law is “to prohibit [EPA] from proposing, finalizing, or disseminating regulations or assessments based upon science that is not transparent or reproducible.”

That last bit — “reproducible” — may also cause problems.

Scientists endlessly debate what makes for a good reproduction of a result. A huge point of contention: Does a study have to use the exact same methods, or can a “conceptual” reproduction that tests the same question with a different approach suffice?

Science has not found a clear answer, and to leave that term undefined in the text of the law is an opening for courts to weigh in on the question. If a court took the word “reproduce” literally, that too would limit the data the EPA can use.

“Cancer studies that took 30 years to compile evidence for, studies from natural disasters and chemical explosions — we can’t reproduce those events,” Lamdan says. “The way we regulate against our exposure to radioactive waste is we look at studies from Nagasaki and Hiroshima — clearly we’re not going to reproduce those.”

The EPA also collects data from one-time situations like the Deepwater Horizon oil spill. When the next oil spill happens, what information should the EPA rely on then? “We’re concerned that in these situations the EPA could be constrained from using important or relevant research in making decisions,” Lexi Shultz, director of public affairs at the American Geophysical Union, wrote in a letter to Congress.

I hope the Senate will recognize that we can easily lose the public benefits of clean air and water if the EPA can’t readily cite the latest evidence or be advised by top experts.