Today, Environmental Protection Agency (EPA) administrator Scott Pruitt is expected to announce a proposed rule that would severely limit the kinds of science that could be used in the agency’s rulemaking process.
The changes — which would ban the use of any underlying data that isn’t available publicly — have been previously proposed by conservative lawmakers like Rep. Lamar Smith (R-TX) and champions of deregulation like Steven Milloy, a former consultant for the tobacco industry who has argued that air pollution is not a public health threat.
But the new standards could also have the unintended consequence of limiting the kind of industry data that the EPA can use in its rulemaking process — making it more difficult for Pruitt and his political appointees to rubber stamp rules favorable to industry.
Scientists fear that Pruitt’s new science standards will severely limit the kinds of public health studies that the agency can use when considering new rules, because many large-scale public health studies rely on anonymous data. That data is, by law, kept anonymous due to patient privacy policies — though the studies are still subject to the same kinds of peer-review process as studies that use publicly available data.
Limiting public health data could be a double-edged sword for Pruitt and his political allies, however, because it could ban the use of data that could be favorable to industry.
“The thing about the health data is that it works both ways,” Andrew Rosenberg, director of the Union of Concerned Scientists’ Center for Science and Democracy, told ThinkProgress. “Health data can show that something does have an impact and it can also show that something doesn’t have an impact.”
But limiting the kind of science that the EPA can use to only publicly available data won’t just impact public health studies — it will also potentially have a chilling affect on the kind of data that industry is willing to submit to the agency for rulemaking.
That implication has already spooked some political appointees within the agency, who have internally expressed concern about how industry might respond to the changes.
According to a report published last week by Politico, Nancy Beck — Deputy Assistant Administrator for the Office of Chemical Safety and Pollution Prevention and former staffer for the American Chemistry Council (ACC), the chemical industry’s main trade association — raised concerns as far back as January of this year that the new requirements would impose serious burdens on the chemical industry.
“The directive needs to be revised,” Beck wrote, explaining that pesticide registrations require “a huge amount of data to be submitted to the agency” and that requiring that data to be publicly available would “be incredibly burdensome” and “not practical.”
Beck also worried that requiring public data could disrupt registration for chemicals under the Toxic Substances Control Act (TSCA). Under an update to TSCA passed in 2016, the EPA has to make an affirmative finding that a particular chemical does not pose a threat to human health before approving it for use. To make that assessment, the EPA often relies on proprietary data provided by the company — data that the company likely doesn’t want made public, from a product, patent, or intellectual property perspective.
According to the UCS’s Rosenberg, the new standards could potentially also limit the kinds of industry data that the agency could use in cost-benefit analyses, which the agency typically conducts for large-scale regulations.
Does requiring publicly available data mean that companies will be forced to make their accounting and book-keeping public for cost-benefit analyses conducted by the agency? And, if companies are reluctant or unwilling to make that information available, will that mean the agency is unable to conduct a cost-benefit analyses, potentially undermining a regulation’s chance of surviving scrutiny by a court?
“This whole thing makes very little sense from an industry standpoint and from a public health standpoint,” Rosenberg said.
It’s unclear what the final proposed rule will look like, and it’s possible that it will include a special kind of carve out for confidential business information. But including such an exemption could open the rule up to legal challenges, allowing critics to argue that letting companies keep their data private — while forcing public health studies to publish anonymous data — qualifies as “arbitrary and capricious” and therefore violates the Administrative Procedures Act.
“We believe the whole argument is nonsense,” Rosenberg said. “They are making this big argument about how you should show all your raw data and analysis, but where is the analysis that this is necessary?”