The House has passed two bills to overhaul how the Environmental Protection Agency uses and reviews science. Proponents say the legislation would increase public trust and stakeholder participation in EPA’s decisions, but critics assert the bills would prevent the agency from using the best available science and academic expertise.
Last week, the full House of Representatives debated two controversial bills that could have a significant impact on how the Environmental Protection Agency uses and reviews scientific information: the “Honest and Open New EPA Science Treatment (HONEST) Act” and the “EPA Science Advisory Board Reform Act.”
The former would prevent EPA from taking various regulatory actions unless the scientific information relied upon is "publicly available online in a manner that is sufficient for independent analysis and substantial reproduction of research results.” The latter would overhaul the membership criteria and public comment procedures of EPA’s Science Advisory Board (SAB), a federal advisory committee that reviews the scientific basis of the agency’s regulatory decisions.
The primary stated purpose of the bills is to ensure the agency relies on research that is transparent and reproducible and to increase the diversity of perspectives represented on the SAB by increasing local and industry representation. However, critics maintain that the bills would likely prevent the agency from using large swaths of peer-reviewed literature and would unduly bar certain highly qualified academics from the SAB.
Bills land in Senate for the third time
The House passed similar bills on mostly partly-line votes in the past two Congresses, and each elicited a veto threat from the Obama administration. The White House has not issued a statement of administration policy on the new bills, but given President Trump’s stances on regulatory reform, a veto threat appears unlikely.
Senate Republicans have been receptive to the legislation in the past, as the Senate Environment and Public Works Committee considered companion bills in 2015 — one of which cleared the committee on an 11 to 9 party-line vote. Neither bill has been introduced in the Senate so far this year, although Sen. James Lankford (R-OK) has launched a legislative effort whose goals appear similar to those of the “HONEST Act.”
Honest attempt at reform or ‘insidious’ effort?
“The days of ‘trust-me science’ are over,” declared Rep. Lamar Smith (R-TX), chair of the House Science Committee and sponsor of the “HONEST Act,” near the outset of the March 29 floor debate on the bill. Arguing that the level of transparency the bill requires is consistent with the tenets of the scientific method as it should be applied in the digital era, Smith remarked,
In our modern information age, federal regulations should be based only upon data that is available for every American to see and that can be subjected to independent review. That is called the scientific method.
Furthermore, Smith said, the bill will help prevent EPA from issuing costly regulations based on political ideology rather than sound science. “We all care about the environment, but if policies are not based on legitimate science, regulations will result in economic hardship with little or no environmental benefits,” he said.
Smith also asserted that the bill’s new provision requiring redaction of personal and proprietary information should allay privacy concerns, an oft-raised objection to the earlier bills.
Rep. Eddie Bernice Johnson (D-TX), ranking member of the House Science Committee, denounced the bill as no better than its prior incarnation, the “Secret Science Reform Act:”
The secret science bills that the Republicans tried to enact over the previous two Congresses were insidious bills designed from the outset to prevent the EPA from using the best available science to meet its obligations under the law.
She argued that, since EPA does not control or own the data for many of the studies it relies on, the bill would “preclude the EPA from using the vast majority of peer-reviewed science in existence today.”
Furthermore, she was unconvinced that the new redaction provision would adequately protect private information since the bill would permit anyone to access it if they secured a confidentiality agreement from the EPA administrator.
Johnson also disputed the proponents’ invocation of the scientific method.
“Republicans claim that this bill is just implementing scientific best practices. It is odd, then, that a host of scientific societies and science stakeholder groups have expressed their opposition to this legislation,” she said, citing a letter signed by several scientific societies and universities. (The American Meteorological Society, an AIP Member Society, is a signatory of the letter.)
In the document, the organizations express concern about how certain terms in the bill could be interpreted and argue that its insistence on reproducibility is misguided. Depending on the reproducibility criteria adopted, they say, the bill could prevent EPA from using research that is infeasible or impossible to reproduce, such as longitudinal public health studies and research based on one-time events like the Deepwater Horizon oil spill.
Cost estimate a focal point of debate
Critics of the “HONEST Act” took issue with the vote being scheduled before the Congressional Budget Office (CBO) released its analysis of the bill. Given its absence, they pointed to CBO’s 2015 estimate that a prior version of the bill would cost about $250 million per year for several years as evidence that the new bill would impose a massive unfunded mandate on the agency at a time when it is being targeted for deep budget cuts.
Smith countered that this estimate was based on a “misinterpretation” of the bill’s requirements. “All the HONEST Act requires is that the EPA use science that is publicly available, not make all science public itself. So the cost is negligible,” he said.
CBO posted its analysis of the bill shortly after the vote. In it, CBO concludes that the legislation could indeed be implemented at low cost.
“Based on information from officials at the EPA about how the agency would implement the legislation, CBO expects that the agency would choose to rely only on studies that already meet the act’s requirements at the outset of undertaking covered actions.” CBO estimates that this implementation method would cost about $5 million between 2018 and 2022.
However, CBO also notes that such an approach would significantly decrease the number of studies EPA uses — currently about 50,000 per year. CBO estimates that if EPA were to continue to use this volume of research, the agency would need to spend at least $100 million per year to “upgrade the format and availability of those studies’ data to the level required” by the bill.
Democratic lawmakers have begun to question the CBO analysis after Bloomberg BNA reported on April 4 that EPA leadership prevented staff feedback on the potential implementation costs from reaching CBO. The staff comments reportedly said that the bill would cost at least $250 million a year to implement.
Sen. Tom Carper (D-DE), ranking member of the Senate Environment and Public Works Committee, sent a letter to EPA Administrator Scott Pruitt on April 4 requesting copies of staff comments on the bill. Carper said that suppression of the comments, if it took place, would be “grotesquely ironic, given the bill’s purpose is to prevent EPA from using so-called ‘secret’ science to write regulations to protect against the effects of air, water or other environmental pollution.”
A balancing act?
The “EPA Science Advisory Board Reform Act” would alter the membership composition of the SAB in three primary ways. First, it would require that at least 10 percent of the board be drawn from state, local, or tribal governments. Second, it would make it easier for industry experts to serve as members. Finally, it would prevent current recipients of EPA grants from serving on the board and would bar departing members from receiving EPA grants for three years.
During the March 30 floor debate on the bill, its sponsor Rep. Frank Lucas (R-OK) argued that these changes are necessary to restore balance to the board. The SAB currently has over 40 members, most of whom are based at universities.
“Unfortunately, the history of the SAB shows that private sector representation is often lacking or simply nonexistent,” he remarked. He also argued that the service of EPA grant recipients on the board could, at the very least, “create the appearance of a conflict of interest.”
Johnson blasted the grant recipient restrictions, asserting that they amount to deliberate “roadblocks” to academic scientists serving on the board. She asserted that the provision “turn[s] the term ‘conflict of interest’ on its head by excluding scientists who have done the most relevant research on the topic being considered by the board.” Conversely, she argued the bill “gut[s] actual financial conflict-of-interest restrictions against industry representatives.”
Regardless of its ultimate composition, it appears the SAB will likely have a lighter workload in the coming years. After the vote on the bill, the Washington Post reported that EPA is considering cutting the SAB’s operating budget by 84 percent. The budget document acquired by the Post says that this funding level reflects “an anticipated lower number of peer reviews.”