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Opponents Show Up in Force at a Hearing for the EPA's Controversial 'Secret Science' Rule

The rule's architects aren't really seeking better science, opponents argue.
The Environmental Protection Agency's headquarters in Washington, D.C.

The Environmental Protection Agency's headquarters in Washington, D.C.

During the two-plus hours I spent at a public hearing hosted by the Environmental Protection Agency Tuesday morning in Washington, D.C., opponents to the agency's proposed "science transparency rule" outnumbered supporters seven to one.

The hearing concerned a controversial policy that EPA leaders proposed this spring: that when the agency uses scientific studies to write regulations, it must make the data underlying those studies publicly available. Otherwise, the studies can't be used to justify rules. The text of the proposed policy says it "strengthens the integrity of EPA's regulatory actions and its obligation to ensure the Agency is not arbitrary in its conclusions."

Opponents argue that, as written, the rule would force regulators to ignore studies that show the dangers of pollutants such as smog and lead, but whose underlying data can't be made public because it's confidential personal health information. The EPA's rule provoked such an outcry that the agency extended the usual public comment period and planned Tuesday's public hearing.

At the hearing, Nsedu Obot Witherspoon—executive director of the Children's Environmental Health Network, which advocates for laws that limit chemicals in the environment that affect kids' development—shared a typical comment: "CEHN is strongly opposed to the rule and is concerned that it will adversely affect EPA's ability to use the best available science in decision-making and negatively influence existing and future protection for children's health," she said.

House Representative Paul Tonko (D-New York) had perhaps the most colorful comment: "Let's all admit here that this emperor has no clothes. This has nothing to do with transparency. It is a thinly veiled campaign to limit serious and highly credible scientific research that supports critical regulatory action."

Because the point of the hearing was to gather public comment for the record, not to debate the rule, the set-up was a bit awkward. Two EPA officials sat at a desk on a stage in a formal, chandeliered ballroom in one of the EPA's buildings on Constitution Avenue. Facing their desk was another desk with two seats for speakers, who were called up in pairs in a pre-determined order. At times, supporters of the rule sat stony-faced next to passionate opponents. The EPA officials, meanwhile, maintained neutral expressions, and never spoke except to tell presenters to talk into their microphones, or the audience to stop whispering.

During the time I spent in the room, just two individuals clearly stated support for the EPA's rule. One was Ted Steichen of the American Petroleum Institute, a trade group for the oil and natural gas industry. The other was Joseph Stanko, a lawyer representing companies that are affected by the National Ambient Air Quality Standards, which say how much of each of six pollutants are allowed in the air. (Southern California's air, for example, violates several NAAQS.)

"Without a transparent NAAQS process," Stanko said, "underlying studies lack robust external review, leading to standards that may not provide objective public benefit." Having overly stringent NAAQS "makes it increasingly more difficult for companies to attain the approvals needed for new, state-of-the-art projects that create jobs and bring much-needed tax revenue to local communities," he said. Businesses regulated by the EPA have long wanted the agency to adopt a data policy like this proposed one, as Reuters has reported.

One of the few speakers not to take a strong stance on either side was Dan Greenbaum, president of the Health Effects Institute. "The HEI has had a policy since forever to not take advocacy positions," he said in an interview. "We don't ever say, 'Our science supports NAAQS at a certain level,' etc."

Nevertheless, Greenbaum's group plays a quiet but key role in this controversy. The EPA cited the Health Effects Institute's data transparency policy in its own proposed rule. In addition, the institute has performed just the kind of data-checking that EPA leaders say they want. Yet, despite the call-out in the EPA proposal, Greenbaum says the institute's data policy is "not quite what is being proposed here."

"It's important not to oversimplify the sharing of private medical information," he says. "We do know how to do it. It is not simple." The Health Effects Institute spent $900,000 in 2000—the equivalent of $1.3 million today—to re-assess the Harvard Six Cities study, a critical air-pollution study that the EPA frequently uses to justify regulations. Because it's so costly and difficult to protect study volunteers' privacy, Greenbaum thinks that kind of re-analysis should only be done sparingly.

And, in the end, did the re-analysis make a difference to critics of the Six Cities study? The Health Effects Institute found that Six Cities has its limitations, but still successfully shows that certain air pollutants are linked to deaths. Yet the very origin of the EPA's proposed rule—which is so controversial that more than 100 people signed up to speak at the hearing—is continued opposition to Six Cities.