EPA Finally Takes 'Fishbowl' Approach to Regulation
The Environmental Protection Agency (EPA) took an important and long overdue step to improve transparency at the agency when it announced that it will no longer rely upon non-public data as a basis for its rules and regulations. It may come as a surprise that such a common sense action is even needed in the first place. But, in fact, the EPA has long relied on non-public studies to justify a lengthy list of costly air regulations.
Data transparency in the development of rulemaking is not a new idea, and it shouldn’t be controversial. In 1983, then-EPA Administrator William Ruckelshaus issued a well-known memo declaring that the agency should operate as if it were “in a fishbowl.” This spirit of openness with respect to the regulatory process is enshrined in statute, and countless White House directives and EPA memos reinforce the principle and detail guidance for implementing it.
It is also supported by experts of all political stripes. In 2012 congressional testimony, President Obama’s science advisor, Dr. John Holdren, unequivocally endorsed the idea, stating: “Absolutely, the data on which regulatory decisions and other decisions are based should be made available to the Committee and should be made public.” The chair of the EPA’s science advisory board during the Obama Administration echoed this sentiment.
Despite unanimous support for this fundamental principle, the fishbowl suddenly gets murky when it comes time to actually apply it in practice. Former Obama EPA officials Gina McCarthy and Janet McCabe recently argued that EPA’s new transparency efforts are an “attack on science.” In reality, the contrary is true: Releasing data for all to see allows for proper scrutiny that ensures the best available information informs the regulatory process. McCarthy and McCabe also argue that releasing data could jeopardize individual health records. While privacy is certainly important, that worry has been diffused by numerous experts, including the National Academy of Sciences, which said that transparency can be achieved without releasing sensitive confidential information.
Perhaps the real reason for these objections is that adherence to the transparency principle could limit EPA’s longstanding practice of using non-public data to justify its aggressive regulatory agenda. This practice originates with two studies dating back to the 1980s, which suggest a link between certain types of particulate matter (“PM2.5”) and health outcomes (known as the Harvard Six Cities and ACS CPS-II studies). The data associated with these decades-old studies have never been made public. But that hasn’t stopped the EPA from using them to monetize regulatory benefit claims that then dominate the communications and regulatory marketing associated with nearly all of its major rules. For example, EPA employed those claims to defend a 2012 power sector regulation that was one of the costliest in the agency’s history, relying on the non-public data to claim that the rule would deliver $62 billion in regulatory benefits. EPA’s monetization assumptions have also come under scrutiny for other reasons, for instance, when a 2009 modification resulted in a quadrupling of claimed benefits without any change in the underlying data.
The scale of this misleading practice is staggering. Data compiled by the U.S. Chamber of Commerce found that between 2000 and 2016, EPA issued 62 rules claiming a total of $923 billion in regulatory benefits. Incredibly, $898 billion of these benefits (or 97.2 percent) were monetized based on the non-public data associated with PM2.5. Even though the vast majority of these rules were not intended to address PM2.5, and even though the vast majority of their corresponding claimed benefits came from areas of the country that already deemed safe and in compliance with EPA’s PM2.5 standard, the agency repeatedly touted these figures to build public support for its regulations.
It is one thing to be cavalier about transparency principles when their application has little or no import to public policy, but federal rules that impact millions of people and billions of dollars should be held to a higher standard. At the very least, they should be held to the standard that many scientific and medical journals require.
Whether you agree with the current administration’s regulatory approach or not, developing rules in a fishbowl is a good thing. Doing so can lead to better public policy, improve the integrity of the rulemaking process, and increase public confidence in the EPA itself.
Dan Byers is vice president of policy at the U.S. Chamber’s Global Energy Institute.
