You’re entitled to your own opinions, Daniel Patrick Moynihan supposedly said, but not to your own facts. Fair enough—but are you entitled to the government’s facts? The Environmental Protection Agency increasingly thinks so.
In a “proposed rule” published in the Federal Register on April 30, the EPA announced a new standard governing the agency’s reliance on scientific studies in formulating regulations for clean water and air. Specifically, the agency proposed to give the public broad access to all “pivotal regulatory science” materials related to new EPA regulations—including “studies, models, and analyses that drive the magnitude of the [agency’s] cost-benefit calculation, the level of a standard, or point-of-departure from which a reference value is calculated.” The agency would henceforth promote the disclosure of scientific studies and other data “critical to the calculation of a final regulatory standard or level, or to the quantified costs, benefits, risks, or other impacts on which a final regulation is based.”
The EPA’s explanation was straightforward: its clean air and water regulations rely heavily on scientific data, models, and projections, and before it announces new regulations that impose significant burdens, the agency should ensure that the public has access to this information. This would allow all parties affected by a new regulation to scrutinize the studies on which the rule is based, to make sure that the numbers add up.
As the EPA noted, such transparency and scrutiny are especially valuable in an era when the “scientific community” has been “shaken by reports that a troubling proportion of peer-reviewed preclinical studies are not reproducible,” in the words of a 2014 Science editorial. “[C]onfidence in results is of paramount importance,” the editorial observed. “Science advances on a foundation of trusted discoveries.” By the same token, regulatory advances must rely on trusted science if they are to retain democratic and technocratic legitimacy. Too often, though, regulators fall short of that standard—as Manhattan Institute senior fellow Oren Cass observed in a 2017 National Affairs essay, “Policy-Based Evidence Making.”
This isn’t the first time that such calls have been heard. In 2009, President Barack Obama demanded greater “transparency in the preparation, identification, and use of scientific and technological information in policymaking” so that the public could trust the “science and scientific process informing public policy decisions.” The EPA’s own recent call for greater transparency in its operations would seem to be a concession to its critics, who allege that the agency, under Administrator Scott Pruitt, has been too secretive—or worse. (Facing ethics investigations, Pruitt resigned in July; an interim successor is leading the agency.) Indeed, groups like the Union of Concerned Scientists have previously urged more openness. “Scientific integrity requires public access to the science that underlies decisions as well as to information regarding how decisionmakers used that science,” the UCS declared in a 2017 report aimed at the incoming Trump administration. “Such access,” it added, “can be granted while maintaining necessary confidentiality and respecting privacy concerns (such as those regarding medical data).”
Yet when the EPA announced its intention to make regulatory science more transparent, the same groups erupted with outrage. Even the UCS joined the opposition. “The EPA is reportedly on the verge of restricting the science that EPA can use in decision-making,” the research director of UCS’s Center for Science and Democracy complained, “and I’m livid.” Critics now argue that requiring agencies to rely on transparent scientific information will prevent the agencies from making use of scientific studies based on confidential data sets—because some laws require confidentiality, or because the researchers had volunteered to keep participants’ information confidential, or for other reasons.
The EPA believes that it’s possible to minimize such problems through “simple data masking, coding, and de-identification techniques.” It cited a National Academies report that concluded: “Nothing in the past suggests that increasing access to research data without damage to privacy and confidentiality rights is beyond scientific reach.” And the EPA’s proposed rule would not categorically mandate disclosure where law or necessity requires otherwise. Rather, it would provide only that the “EPA shall clearly identify all studies (or other regulatory science) relied upon when it takes any final agency action. EPA should make all such studies available to the public to the extent practicable.” Of course, the new standard should be applied evenhandedly. Some have called on the EPA to exempt “proprietary data” or “confidential business information” from any disclosure requirement, but singling out this information for special protection would undermine the proposal’s credibility.
Other critics have called the proposal an attack on “science itself.” They have it backward: the new openness would diminish the ability of the EPA and others to invoke “science” as an excuse for regulatory opacity and unaccountability. Science, after all, depends on transparency—as does good government. As one pro-science group urged in a 2004 report: “Full access to scientific information is critical for informed, transparent decision making.”
That “pro-science group”? The Union of Concerned Scientists. Its 2004 report, attacking the Bush administration for being too secretive, was titled “Scientific Integrity in Policy Making.” Sometimes hypocrisy is transparent, too.