EPA Administrator Scott Pruitt has dramatically altered EPA’s longstanding methodical approach to rulemaking and enforcement. Traditionally, EPA approaches rulemaking by: 1) understanding a problem, 2) identifying a range of solutions, 3) transparently designing a targeted program, and 4) implementing and enforcing that program in a fair way. Pruitt’s regulatory approach upends all four pillars.
In the first two steps, EPA relies on the best science to identify and analyze problems and their solutions. Historically, analysis that is suspected of being “results oriented” (having an answer in mind at the outset) is roundly dismissed in the agency. The linear process of rulemaking starts with a question and ends with an answer; it doesn’t start with the answer. Administrator Pruitt seems to start with an answer. That result then dictates the rationale, and at times, the creation of a “problem” to solve.
The Trump EPA’s most recent proposal to exclude peer-reviewed studies when their authors do not make their raw data available is a prime example of this results-driven process. If finalized, the proposed rule would exclude important public health studies from consideration in EPA’s rulemaking process. It would subordinate EPA’s longstanding reliance on rigorous peer-review to a new, unscientific process that requires publication of data. The proposal also grants the Administrator the authority to exclude studies from this requirement on a case-by-case basis. This would give Pruitt license to ignore or invoke this new policy when politically advantageous.
The proposed rule is difficult to explain without understanding that this result has long been sought by activists, including representatives of the tobacco industry, as a way to weaken regulations by removing the scientific basis for those public health protections. The real function of the proposed rule appears to be empowerment of those with ideological agendas or financial stakes in regulatory outcomes. Despite the claims it makes about the importance of “transparency,” the proposal fails to explain why peer review, and the science community’s ongoing efforts to improve it, does not adequately address Pruitt’s concern about the reliability of scientific studies.
If there is a valid purpose to the proposal, it’s the idea that making raw data available for analysis by third parties enables public participation in the agency’s decision-making. The need for public participation, though, has long been addressed by laws like the Administrative Procedure Act. The steps of designing a peer review policy, choosing what research to conduct, and considering specific studies in policy actions are also made available for public comment, both to ensure public participation and to help the agency consider its options. This process operates under well-defined scientific standards, as opposed to the approach in Pruitt’s proposal.
Previously, EPA’s science-based problem-solving was followed consistently to whatever conclusions were found at the end of the process. Now, Pruitt’s method is a solution in search of a validation process.
For more information on EPA’s proposed rule, please see our related posts:
- EPA is Planning to Limit the Science It Considers
- Legal Shortcomings in EPA’s So-Called “Secret Science” Proposed Rule
- Comments by Public Health Experts on the Proposed Rule
This post was edited for clarity on Jan. 28, 2020.