Environmental Protection Agency Administrator Scott Pruitt announced a proposed rule Tuesday that would block the agency from using scientific studies that do not make public the raw data used in the research.
The embattled EPA administrator was surrounded by conservative allies when he announced the change at agency headquarters, with no media present because the agency did not invite reporters.
Pruitt argues the proposed rule, subject to a 30-day comment period, would improve transparency and ensure science used in policymaking can be independently verified. It fits with a policy he implemented last year to boot scientists from key advisory boards to the EPA.
"The science that we use is going to be transparent, reproducible and able to be analyzed by those in the marketplace," Pruitt said. "This is the right approach. Today is a red letter today. It's a banner day. It's an agency taking responsibility for how we do our work and respect the process to make sure we can enhance confidence in our decision making."
The proposal is modeled after legislation proposed by House Science Committee Chairman Lamar Smith, R-Texas, who tried to impose a similar requirement through legislation, but it failed to pass. Smith attended Pruitt's announcement, with Sen. Mike Rounds, R-S.D., who authored a mirroring bill in the Senate.
Supporters of the idea said they want to end the use of “secret science” in rulemaking.
"Surely, we can all agree on two things," Smith said. "We need clean air and water, and EPA's regulations should be supported by legitimate and publicly available data. Today’s announcement ensures data will be secret no more."
The proposed rule would have the effect of restricting the science the EPA could use when drafting environmental regulations, which critics say would allow the agency to justify weaker rules because it has less research to work with and can favor information that fits its goals, rather than relying on the best science.
Some scientific research uses personal health information from individuals who participate knowing the details are not to be made public but used to inform policymaking.
“Administrator Pruitt is very clearly trying to exclude and ignore longstanding pollution and medical science that is peer-reviewed, embraced by the National Academy of Sciences among others, and also based on health data that people were promised would be kept confidential,” John Walke, the clean air director of the Natural Resources Defense Council, told the Washington Examiner.
Walke argues the rule would be struck down in court because it is an arbitrary and capricious decision under the Administrative Procedure Act, which governs agency rule-making and requires regulatory decisions to be backed by data.
It also could violate laws that mandate the use of "best available science," including the Toxic Substances Control Act and Safe Drinking Water Act, opponents of the policy said.
“It is arbitrary and illegal for EPA to condition use of science and relevant information on the public availability of confidential health information, confidential business information, computer codes, and the like, rather than the validity and integrity of that science and information,” Walke said. “Moreover, EPA is very likely to tie itself up knots trying, unsuccessfully, to allow confidential information desired by industry, while disallowing health studies based on confidential patient data that would support stronger health safeguards.”
Major studies that have depended on confidential information include a major 1993 study by Harvard University linking air pollution to premature deaths.
Companies can’t reveal proprietary information either, so businesses also could be subject to the policy. That means the EPA could be blocked from considering confidential business information, such as data submitted by auto companies intended to aid in determining fuel-efficiency standards.
“It seems like this will handicap the EPA in making rules based on public health or industry data, and I think we should tread cautiously,” Joseph Majkut, director of climate policy at the Niskanen Center, a free-market think tank, told the Washington Examiner. “Private industry data and public health surveys cannot be as transparent as Pruitt would like to protect their property or the privacy of people in the studies. Insofar as the science behind them is solid, and in the case of Harvard and others it seems to be, then we risk losing valuable sources of information. I'm all for an open and transparent scientific process, but we probably don't want to throw the baby out with the bathwater.”
But the text of the proposed rule says Pruitt may grant exemptions on a case-by-case basis when publishing underlying data is "impracticable."
It lists exposing "confidential business information" as a possible exception, so corporate-funded research could potentially get an opt-out. Information that is "sensitive to national and homeland security" also can be kept private.
Pruitt’s announcement of the new rule comes as he is slated to visit Capitol Hill Thursday for the first time since a flood of allegations about his spending, ethics, and hiring practices prompted investigations by Congress, the White House, and the EPA’s inspector general.
He is scheduled to testify before a House Energy and Commerce subcommittee in the morning and at a House Appropriations subcommittee in the afternoon.
The EPA administrator, in the lead-up to the hearings, is losing Republican support.
Three key Senate Republicans on Monday called for Pruitt to face more hearings about his recent controversies, including Sen. Jim Inhofe, R-Okla., a reliable Pruitt ally from his home state.
Sen. Lisa Murkowski, R-Alaska, told reporters Tuesday she plans to invite Pruitt to testify next month before the Senate appropriations subcommittee that oversees the EPA's budget.
Smith and Rounds, however, sought to reinforce support that Pruitt maintains from many conservatives.
"I know of no administration official who goes on the offensive, is not intimidated, and does the right thing regardless," Smith said. "We couldn't have a better head of the EPA."