EPA’s Science Advisory Board (SAB) has released four draft reports that cast doubt on the science underlying four major proposed rules that would impact clean water, mercury pollution from power plants, vehicle fuel efficiency, and scientific studies used to support regulations. While the draft reports may still be revised during one of the board’s four scheduled meetings in January and they are only meant to advise EPA, the issues raised largely echo those raised in public comments on the proposed rules filed by outside experts, community groups, advocacy organizations, and other stakeholders including industry in some instances.
The SAB is currently made up of 44 members, and includes university researchers, state government scientists, and private-sector researchers from consulting firms and industry. The board’s role is to provide advice to EPA, and to review the scientific rigor of actions taken by the agency.
The Trump administration has made a point of replacing academics on the SAB and other EPA advisory panels with more industry-friendly researchers. The administration has changed its interpretation of what constitutes a conflict of interest to include any researcher who has received grant funding from the agency, a move that disqualifies many academics while having little impact on private sector scientists. The resulting shift in the composition of the board has not, however, stopped it from questioning the scientific bases given to justify these four major rule changes.
Revising the Definition of “Waters of the U.S.”
Regarding EPA’s proposed “Waters of the U.S.” rule, governing which waters may be regulated by the federal government under the Clean Water Act, the SAB’s draft report concludes that the rule “…is not fully consistent with established EPA recognized science…” and “may not fully meet the key objectives of the CWA – ‘to restore and maintain the chemical, physical and biological integrity of the Nation’s waters,’….” In response to the Trump administration’s stated position that legal precedent necessitates the proposed rule’s interpretation of jurisdictional waters, the SAB states that it is “disappointed” with this interpretation, and that it is being made “without a fully supportable scientific basis, while potentially introducing substantial new risks to human and environmental health.”
Safer Affordable Fuel-Efficient Vehicles
In response to EPA’s proposed Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule, which proposed freezing fuel economy standards for cars and light trucks in 2021 through 2026 model years at 2020 levels, the SAB draft report identifies “significant weaknesses” that “lead to implausible results” that may overstate the costs of sticking to the schedule of fuel economy increases proposed by the Obama administration. Specifically, the board “…concurs with other commenters and reviewers that there are severe simplifications and flaws in the technical implementation of the fleet turnover modeling that appear to have produced misleading results…Some important features of the fleet-turnover issue are not modeled at all. Thus, the SAB recommends a variety of improvements to the fleet turnover modeling.”
The SAFE Vehicles Rule draft report also discusses the economic modeling used to estimate how many cars will be sold and scrapped under different regulatory proposals. According to the SAB, the sales and scrappage equations have multiple flaws in their “theoretical underpinnings, their econometric implementation and, in one case, possibly in the interpretation of their coefficients.” All of this leads to a model that suggests car sales would increase as regulation and cost increases, contradicting the basic economic assumption that sales would decrease. In response to this and other weaknesses identified by the board, the draft report recommends EPA revise its analysis and predicts that the resulting changes could actually demonstrate that the Obama-era standards “might provide a better outcome for society than the proposed revision.”
Mercury and Air Toxics Standards
Regarding EPA’s proposed revisions to its mercury and air toxics standards for power plants, the SAB’s draft report suggests that EPA conduct a new risk assessment on mercury exposure through fish consumption as part of the revised Supplemental Cost Finding and Residual Risk and Technology Review and any future mercury regulation. The draft report points out that the current risk assessment includes only the consumption of recreationally-caught freshwater fish, while a much larger portion of fish consumed in the U.S. is commercially-caught fish that spend a large part of their life in U.S. waters. By not including such data, the proposed rule’s risk assessment may completely exclude a major source of mercury exposure. The draft report concludes that a revised risk assessment “should include all relevant health outcomes for neonates, children and adults.”
Strengthening Transparency in Regulatory Science
Finally, the draft report on EPA’s proposed scientific transparency rule emphasizes the multiple areas of ambiguity and unanswered questions in the rule that intensify the uncertainty around the proposed rule’s implementation and effects. This includes uncertainty over which studies would be subject to the rule, a lack of guidelines for when exemptions will be granted, and no definition of the “raw data” that must be made available for all studies used by EPA. Without clearer guidance on these aspects of the rule, the draft report states “it is not possible at this time to define the implications of the rule with confidence.” The draft report also questions the feasibility of the rule and its efficacy, “The lack of reference to and comparison with existing and evolving federal procedures to address the underlying purpose of the Proposed Regulation (increased transparency) within scientific studies supported and utilized by the federal government undermines the confidence that the proposed regulation will meet its objectives effectively and efficiently.” The board ultimately finds that “…EPA’s proposed policy of excluding from consideration any study for which underlying data are not made publicly available is not consistent with sound scientific practice.”
The report goes so far as to say that the proposal’s lack of clarity makes it susceptible to being “viewed as a license to politicize the scientific evaluation required under the statute based on administratively determined criteria for what is practicable.” The draft also challenges the proposal’s premise: “In general, the SAB finds that EPA has not fully identified the problem to be addressed by the Proposed Rule.” Finally, the SAB anticipates the problem of opponents of regulation using dataset reanalysis as an obstructive tool when it recommends: “If EPA wants to see reanalyses of datasets that are critically important for regulation, the agency should consider funding a competition to conduct such reanalysis.”
Overall, these four draft reports express serious concerns regarding the scientific methodologies used by EPA in drafting these proposed rules. The SAB’s analyses and statements are even more striking given the Trump administration’s work to fill the board with industry-affiliated members who would presumably be more supportive of its deregulatory agenda.
For more information, please see our other Mission Tracker posts, including:
- Changing How EPA Calculates Regulatory Benefits
- Legal Shortcomings in EPA’s So-Called “Secret Science” Proposed Rule
- Comments by Public Health Experts on the Proposed Rule