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Monday, December 11, 2023 | Back issues
Courthouse News Service Courthouse News Service

Pending EPA Rule Change Already Shaping Enviro Regulation Proposals

A controversial EPA rule proposal from April is already having an impact on regulatory changes across the agency despite the fact it has not gone into effect.

WASHINGTON (CN) - A controversial EPA rule proposal from April is already having an impact on regulatory changes across the agency despite the fact it has not gone into effect.

The proposed rule change, known as Strengthening Transparency in Regulatory Science, aims to make scientific data used in the rulemaking process “publicly available in a manner sufficient for independent validation.”

“The era of secret science at EPA is coming to an end,” said then-EPA Administrator Scott Pruitt, in a press release sent out when the rule change was proposed seven months ago. “The ability to test, authenticate, and reproduce scientific findings is vital for the integrity of rulemaking process. Americans deserve to assess the legitimacy of the science underpinning EPA decisions that may impact their lives.”

But scientists see it differently.

“Ostensibly about “transparency”, the policy will actually restrict the agency’s ability to use the best available science—and thereby weaken protections for public health and the environment,” wrote Gretchen Goldman, research director for the Center for Science and Democracy at the Union of Concerned Scientists, in a takedown of the rule change which points to six sections of the rule which will have large impacts on how the EPA regulates everything from air pollution to “good laboratory practices.”

Among stand out points are the need for results from studies to be reproducible, “as if we should expose kids repeatedly to lead or mercury to make sure that the initial studies hold up,” Goldman wrote.

She also noted the rule’s language would allow the EPA administrator to “exempt significant regulatory decisions on a case-by-case basis.”

“This is a loophole big enough that we could drive a tractor-trailer through,” she wrote. “By allowing the EPA administrator to exempt entire decisions, or just singular studies, this allows political appointees to pick and choose what science is “acceptable” when making (what should be) science-based policy decisions.”

Most recently, the effects of the rule were seen in an AP story about rumored changes to EPA’s recommended threshold for radiation exposure.

The story, which was picked up by major outlets nationwide within hours of its publication, is based heavily on a quote from the press release announcing the Transparency rule change.

“The proposal represents a major scientific step forward by recognizing the widespread occurrence of non-linear dose responses in toxicology and epidemiology for chemicals and radiation,” said Dr. Edward Calabrese, a professor of Environmental Health Sciences at the University of Massachusetts, in the release.

While no specific radiation-related rule proposal exists to date, AP connected the presence of Calabrese with the ability of the EPA to pick and chose which science it uses thanks to the Transparency rule.

Ed Lyman, senior scientist with the Union of Concerned Scientists’ Global Security Program, told Courthouse News “the vast majority of scientific work” finds there is no acceptable level for radiation exposure, contrary to Calabrese’s theory. And if the administration uses the work of Calabrese  it would be an example of choosing the outlier instead of what’s generally accepted.

“To the extent there is uncertainty it would make more sense to protect the public as opposed to not protect them,” Lyman said.

He went on to explain an even more problematic side of the transparency rule: enforcing its “publicly available” qualifier on scientific data.

“If you had a rule saying you had to expose all the confidential personal data in a study [as this rule suggests], it would violate the confidentiality rules the studies were conducted under,” he said, noting that could lead to important health data being excluded from future EPA decision making.

Despite these concerns, the impacts from the transparency rule are already being seen in at least one proposed rule change, according to Dr. Andrew Rosenberg, Director of Science and Democracy at the Union of Concerned Scientists.

He said Trump’s Clean Power Plan specifically omitted studies which could be included in its development, and he fears the same could be done for a yet-to-be-released mercury-related rule change expected out of the EPA any day now.

“If you can never rely on the epidemiological studies, which the transparency rule would force, then it’s more difficult to implement strong protections against mercury, one of the most dangerous neurotoxins we know about,” he said. “Lots and lots of things will be impacted.”

And while rules are being developed and submitted, Rosenberg and the Union of Concerned Scientists can’t do much besides wait until final versions are released.

“They could put them in place at their peril,” he said, hinting at this group’s willingness to take the transparency rule and all those rules made under to court if they reach the end of the rulemaking process. “I believe the rule itself is arbitrary and capricious, but we can’t go to court on it until after the rule is finalized.”

The transparency rule is still wrapping up public comment, and a final version of the rule is expected to be submitted to the Federal Register in the coming months.

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