In 1969, the tobacco company Brown & Williamson had a big problem. Newly released studies had shown that smoking was linked to cancer, emphysema, and bronchitis. It hurt business and led to a public outcry that resulted in strict regulations on where and how cigarettes could be sold. Since Brown & Williamson couldn’t dispute the science, it took up a new strategy for countering this deluge of negative publicity: poking holes in the truth.
“Doubt is our product,” reads a now infamous internal memo, “since it is the best means of competing with the ‘body of fact’ that exists in the mind of the general public.”
Some version of this strategy has been the norm since, whether corporations are fighting lawsuits over cancer-causing asbestos, or paying millions to oppose climate change policies. If enough doubt is created among the public and regulatory agencies, regulations and profit losses will be minimized. The main defense against this tactic is the regulation process itself, first solidified with the Administrative Procedure Act of 1946.
Under the APA, if a federal agency felt a new rule or regulation was needed to protect public health, it outlined its proposal, solicited comments from the public, and then published a final rule with general responses to those comments. (The court system reigned in rules when unconstitutional.) Over the years, the process became a bit more complex, but it’s basically worked in the same general way.
“What you historically had was a genuine effort to balance different perspectives through rule-making,” says Stephanie Kodish, director of the National Parks Conservation Association’s Clean Air program. “[The Regulatory Accountability Act] would imbalance that process. It would be a game-changer.”
Introduced into the House of Representatives on January 3rd by Chairman of the House Judiciary Committee Representative Bob Goodlatte (R-Virginia), the RAA quickly passed, largely along party lines. It’s unclear what will happen on the Senate floor, but if made into law, it would be a boon for businesses sick of regulations.
The RAA cobbles together six different proposals that have been circulating since 2011 and includes requirements that agencies submit abbreviated summaries (no more than 100 words long) of proposed rules to the regulations.gov website, and give monthly updates to the Office of Information and Regulatory Affairs for any rules expected to be proposed or released in the following year. Those two requirements are relatively benign, but they’re only the beginning.
According to Seth Moulton (D-Massachusetts), who voted no in the House, the RAA will require agencies to “consider more than 70 new criteria when issuing rules or regulations.”
Among the RAA’s more controversial provisions: it creates two different processes for rules, sorting based upon whether they impact the economy by more or less than $1 billion annually. Over that threshold, the rule is considered “high impact,” and requires agencies to weigh a number of similar regulations and choose the “lowest-cost” one. This inherently places profits and public health at odds.
Another provision in the “high impact” track dictates that any scientific claim must make “all data, studies, models, and other evidence” publicly available. This process may seem reasonable on the surface, but scientists have concerns. The first is that, similar to how copyright law allows businesses to recoup costs previously spent on innovation, privately held models allow scientists to advance their careers.
“Raw data is scientific currency [that scientists have] to advance in their field,” says Yogin Kothari, a representative of the Union of Concerned Scientists, a non-profit science advocacy organization.
This requirement, then, has the potential to exclude the best possible science from presented arguments. But what concerns scientists even more is that this process puts science on trial. “You can have an industry whose pesticides are gonna be regulated by the EPA,” says Kothari, “and they disagree with the EPA’s risk-assessment, and say, ‘We have our own study that says the pesticide isn’t unsafe.'”
If the bill passes, the very purpose of the regulatory agency is at stake.
