The Trump Administration has sought to change how we review scientific studies used in regulatory decisions. Those changes have caused quite a bit of controversy, and now the Courts have sent it back to the EPA to "redo."
On several occasions, I have written on the Trump Administration’s efforts to the use of scientific studies in determining regulatory policy. The regulation required scientific papers, used in making regulatory decisions, to have its underlying data freely available for review – seems like a reasonable request for transparency as its advocates claimed. The opponents objected because they felt that some data might be compromised and made public, especially on an individual’s health. In their view, this would mean that many of the scientific papers underpinning environmental health could not be used. They also feared that prior regulations would be overturned when their foundational scientific data could not be freely viewed.
I was for transparency and believed that prior regulations should not be overturned based on older science but might be changed as new information, based on refined measurement and analysis techniques developed. I also argued that health information privacy could be maintained using procedures already in place when third-parties analyze hospital data.
“A federal court has vacated the Trump administration's "secret science" Environmental Protection Agency (EPA) rule.” The Hill
You can tell from that opening line that this is a highly politicized issue. The court vacated the rule not because of its substance but because of a procedural issue. The Trump administration wanted the rule in place before the Biden administration took over and claimed it was procedural change warranted and authorized by the EPA’s ability to do internal “housekeeping.” The court, I believe rightly, decided that it was a more substantive change and require an additional 30-day waiting period for public comment. Of course, the rule has been open for public comments and changes for the last two years, so I am not sure what new information will be learned.
This is a victory by default for the opponents because the rule now has to go through a far longer process and one the Biden Administration is not likely to do. All of us lose in this situation. Like many other troublesome and controversial topics, this one is put to the side not because we resolved our differences and found a middle way, but on a procedural basis. Those types of decisions come back to haunt us; it kicks the can down the road, it is another measure of our divisiveness.
The Biden administration made another quiet regulatory move this week that I think compounds the issue of transparency. To understand the context, a bit of history. President Reagan ordered federal agencies to issue regulations when “benefits exceed costs.” The fly in the ointment was the meaning of benefits. President Clinton, a wordsmith, known for “It depends on what the meaning of “is” is,” altered the language to allow regulations to only “justify” not exceed costs.
"promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations."
That phrase is President Biden’s contribution. While on the surface, it is laudable, many of those words are at best ambiguous – ambiguity being the devil’s playground for activist regulators on either side of the aisle or argument. The scientific community continues to argue over the health risks of our diet, activity, and air, all topics with measures that we can agree are valid. But how do you measure social welfare, racial justice, or human dignity?
Regulatory policy always involves tradeoffs. But look where we now find ourselves. We are encouraging policy whose costs are justified by things we have difficulty measuring and that may not be available for all to view because it may violate someone’s privacy. This, too, is “secret science.” More crucially, it is a science that can be steered by whoever is in momentary control; and that control, as we just have seen, can change very quickly. This is not the firm ground our regulatory decisions should stand upon. It is quicksand that the powerful interests, be they pro-environment, pro-fossil fuel, pro-sugar, or pro-supplements, can use to their advantage, and ultimately our disadvantage.
Sources: Court tosses Trump EPA's 'secret science' rule The Hill
Montana judge vacates Trump EPA rule Montana Free Press