In a stinging rebuke of the Trump administration’s handling of science, an EPA advisory panel has found major shortcomings in the agency’s pursuit of key regulatory rollbacks.
The sharp criticism in the reports on four top deregulatory efforts is particularly notable given that the administration has selected the majority of the members of the Science Advisory Board.
A proposed rule, for example, to restrict EPA’s use of scientific studies in the name of openness "may not add transparency, and even may make some kinds of research more difficult," the board concludes in one draft report released this week.
In another, the board urges EPA to undertake a new risk assessment before proceeding with the final relook at landmark air toxics regulations on coal- and oil-fired power plants. A third "strongly recommends" that EPA address an array of analytical weaknesses in assessing the impact of its planned rollback of Obama-era vehicle fuel efficiency standards.
And although it doesn’t offer any policy prescriptions, the board tentatively concludes in a "commentary" that proposed rollbacks of Clean Water Act protections depart from "EPA recognized science."
The conclusions are striking because the Science Advisory Board is now mostly made up of members named either by current EPA Administrator Andrew Wheeler or his predecessor, Scott Pruitt. Whether Wheeler, whose relationship with the board was already strained, will take its advice is unclear.
The panel, which currently has 44 members, exists to provide outside counsel to the agency on scientific and technical issues. The draft reports and commentary were produced by smaller working groups; the full board is scheduled to discuss them in a series of teleconferences later this month (Greenwire, Dec. 30, 2019).
In an email today, EPA spokeswoman Corry Schiermeyer said the agency "always appreciates and respects" the SAB’s work but noted that the drafts could change as board members "strive for consensus on these documents."
At a minimum, accepting the panel’s recommendations could slow the pace of rulemakings that EPA is hustling to finish. The agency had hoped by now to issue the final version of the power plant proposal; a new risk assessment could add months to the schedule.
Assuming that the SAB stands by the preliminary findings, its work is sure to supply ammunition to foes of the administration’s agenda. In a statement this morning, the Union of Concerned Scientists, a liberal-leaning advocacy group, cited the review of the scientific studies rule as evidence that the proposal "is ill-considered and scientifically dubious."
More broadly, the board’s willingness to tackle the reviews raises further concerns about a separate plan to concentrate that responsibility with the SAB’s chairman and the EPA administrator, said Chris Zarba, who headed the SAB staff office before retiring two years ago (Greenwire, Dec. 10, 2019).
The full board needs "to keep that authority," Zarba said in an interview today.
The draft reports, all dating from October, had been closely held until this week. What follows are summaries of each.
Clean Water Act protections
The board offered a scathing review of the proposed Waters of the U.S., or WOTUS, rule, which would limit which wetlands and waterways are protected by the Clean Water Act.
In the commentary, the board found parts of the proposal "are in conflict with established science" and decrease "protection of our nation’s waters."
"The proposed definition of WOTUS is not fully consistent with established EPA-recognized science, may not fully meet the key objectives of the Clean Water Act — ‘to restore and maintain the chemical, physical and biological integrity of the nation’s waters’ — and is subject to a lack of clarity for implementation," the board wrote.
The Trump administration has repeatedly said that its WOTUS rule is a legal and policy decision "informed by, though not dictated by, science" (Greenwire, June 6, 2019). Schiermeyer reiterated that point, saying, "The EPA and the Corps of Engineers have obligations to act within the authorities granted to them by Congress and the limitations established by the Supreme Court."
But the advisory board makes a point to say that it is not subject to the same constraints and that relying solely on legal concerns makes for confusing policy.
While the WOTUS rule relies on three Supreme Court cases in an attempt to clearly delineate which waters are federally protected, the board found, "By abandoning a scientific basis to adopt a simplistic, if clear surface water-based definition, this approach neither rests upon science nor provides long-term clarity as evidenced by the continuing interpretation and reinterpretation of these decisions over time."
The advisory board wrote in its commentary that it is "disappointed" that EPA and the Army Corps of Engineers decided that following case law precludes their consideration of a 300-page "connectivity report" compiled by the Obama administration to help inform questions of Clean Water Act jurisdiction with science related to how pollution to wetlands and small waterways can affect larger resources.
"The departure of the proposed rule from EPA-recognized science threatens to weaken protection of the nation’s waters by disregarding the established connectivity of groundwaters and by failing to protect ephemeral streams and wetlands which connect to navigable waters below the surface," the board found. "These changes are proposed without a fully supportable scientific basis, while potentially introducing substantial new risks to human and environmental health."
A final version of the WOTUS proposal is being reviewed by the White House, with EPA officials expecting a review to be finished this winter.
It is unclear whether the advisory board’s commentary will have any impact on the final regulation. The board wrote, "We understand that the EPA and Department of Army will abide by their current interpretation of the law."
The advisers dissected the draft Strengthening Transparency in Regulatory Science rule and again raised concerns about the politicization of science under the Trump administration.
Under the rule, first proposed in 2018, EPA could only use studies in crafting major new regulations for which the underlying data is publicly available for "independent validation" — a mandate that critics say would ultimately benefit polluters.
An age-old Republican idea reinvented by Pruitt, the proposal was met with a barrage of criticism from scientists, physicians and public interest groups.
Although it said transparency in regulatory science is a "worthy goal," the Science Advisory Board wrote in the draft report that the proposal failed to address "key considerations." The SAB raised several nuanced problems: Multiple definitions such as the term "raw data" were unclear, privacy laws pose challenges with confidentiality, historical data sets may not be replicated, huge costs have not been considered and justification for exemptions is ambiguous.
"[T]he SAB finds that key considerations that should inform the Proposed Rule have been omitted from the proposal or presented without analysis, and certain key terms and implementation issues have not been adequately defined or described," the advisers wrote.
One issue surrounds whether the rule would apply retrospectively to data used to make already established rules. Critics suspect that EPA wants to target research like the 1993 "Six Cities" study produced by Harvard University researchers that was key to EPA’s decision to later set ambient air quality standards for fine particles; the agency denies that intent. It is also moving ahead with a supplement to the original proposal that has not yet officially been made public (Greenwire, Nov. 12, 2019).
The board notes that old data — perhaps in boxes or on floppy disks from 25 years ago — might not be available and states that a meaningful way to address the problem would be "to apply rule requirements only to information developed after the effective date of a final rule."
EPA has recently maintained that the rule would in fact not apply to old regulations, a point that critics remain skeptical of. Critics see the proposal as a way for the Trump administration to further dismantle environmental and public health regulations.
Schiermeyer rebutted the notion that the rule would weaken science. "Quite the contrary," she wrote in an email. "By requiring transparency, scientists will be required to publish hypothesis and experimental data for other scientists to review and discuss, requiring the science to withstand skepticism and peer review."
She also said the draft report does not take into account the supplemental proposal that is under White House review.
Still, the advisers do offer suggestions for how the rule could be improved. They suggest that EPA work with other agencies for individual-level data to be made available through federal data centers that are widely used by the U.S. Census Bureau. And they recommend that EPA establish a mechanism to do the same for research produced by universities or societies, which have to follow certain confidentiality rules.
"If the proposed rule is implemented without addressing this issue, such datasets risk being excluded entirely from the regulatory process," they wrote.
In addition, they suggested EPA could fund a competition to restudy data sets for regulation. They said a model was established by the Health Effects Institute in its 2000 reanalysis of the data templates from the Six Cities study and American Cancer Society air pollution research. "However, HEI has not repeated that exercise, and to SAB’s knowledge has no plans to do so," they wrote.
Clean cars rollback
The SAB also lobbed extensive criticism at the Trump administration’s rollback of Obama-era clean car standards.
"There are significant weaknesses in the scientific analysis of the proposed rule," the board wrote in its draft report.
The clean cars rollback is a joint rulemaking between EPA and the National Highway Traffic Safety Administration, a division of the Department of Transportation.
The rollback has two main components. The first part, which was finalized in September, involves revoking California’s Clean Air Act waiver for greenhouse gases. The waiver gives California the legal authority to set tougher vehicle emissions standards than the federal government and to promulgate a zero-emissions vehicle program.
The second part of the rollback, which is expected to be finalized in the coming months, involves significantly weakening Obama-era fuel economy standards. That would allow cars to travel much shorter distances on a single tank of gas.
With regard to the first part, the SAB noted that revoking California’s waiver could have a chilling effect on the adoption of zero-emission vehicles in several states, worsening smog and air pollution around the country. The board criticized EPA for failing to address these consequences in its regulatory impact analysis (RIA).
"Without commenting on the legal issues, we note that the preliminary RIA does not examine the societal consequences (benefits or costs) of this legal interpretation, even though it represents a substantial change in policy," the board wrote. "For the final rule, we recommend changes in the final RIA to shed light on the societal consequences."
With regard to the second part, the SAB criticized the Trump administration for seemingly misinterpreting the "scrappage model" — a projection of when consumers will "scrap" an older vehicle in favor of a newer model.
The administration argued that weakening the Obama-era fuel economy standards would lower the price of a new car, because it would encourage people to buy more new cars and scrap some of their older vehicles.
Furthermore, the administration predicted an unusually large amount of scrappage — enough that there would be fewer cars on the nation’s roads overall.
But in public comments, critics said that result was flawed. They said research shows that lowering the price of cars would likely result in more cars on the nation’s roads overall.
The SAB firmly sided with these critics.
"Two of the new modules recently added to the [corporate average fuel economy] model, the sales and scrappage equations, have weaknesses in their theoretical underpinnings, their econometric implementation and, in one case, possibly in the interpretation of their coefficients," the board wrote. "Together the weaknesses lead to implausible results regarding the overall size of the vehicle fleet."
The SAB stressed that when these flaws are corrected, the benefits of the Obama-era fuel economy standards outweigh the costs, and thus the Obama-era standards "might provide a better outcome for society than the proposed revision."
Still, the board stopped short of recommending that EPA abandon the rollback. Rather, the board encouraged the agency to correct these significant errors before finalizing the second part of the rollback in the coming months.
"The SAB offers no comment on the best regulatory decision but notes that the analytic concerns that need to be addressed in the Agency’s final analysis have strong policy ramifications," the report says.
Peter Wilcoxen, who chaired the SAB working group that reviewed the clean cars rollback, said in an interview this morning that he hopes the administration heeds the board’s advice.
"There are some significant weaknesses in the analysis that need to be addressed before the results will be meaningful," said Wilcoxen, a professor of public administration at Syracuse University.
Power plant regulations
Under the proposed rule unveiled in December 2018, EPA would scrap an earlier determination that it is "appropriate and necessary" to regulate releases of mercury and other hazardous pollutants from coal- and oil-fired power plants. While Wheeler has stressed that the actual emissions limits would remain in place, critics fear the proposal would put a bull’s-eye on what are formally known as the Mercury and Air Toxics Standards.
But the SAB draft report first takes aim at another part of the proposal that has largely been an afterthought in the debate: the outcome of a legally required "residual risk and technology review" by EPA that tentatively found that no changes are needed to the original 2012 limits.
Under the Clean Air Act, the reviews are supposed to explore whether an update to the original standards is needed to address any remaining risk to public health; they are also intended to explore whether advances in pollution control technologies offer the opportunity for further emissions cuts.
In the draft report, however, the SAB concludes that the agency’s risk assessment for the power plant proposal didn’t follow previous methodological recommendations from the board; the assessment also didn’t incorporate more recent research into mercury’s health effects or the countervailing benefits of eating fish that are the main pathway for human exposure to the toxic metal, according to the report.
The board also highlights evidence that it is now possible to better quantify the direct benefits of limiting mercury releases, as opposed to the "co-benefits" of projected cuts in fine particulate concentrations that played an outsized role in EPA’s original justification for the original 2012 standards. The Trump administration now maintains that the reliance on co-benefits was so flawed that the "appropriate and necessary" determination accordingly must be repealed.
"For purposes of this or any other future mercury regulation, EPA should instigate a new risk assessment," the board’s draft report says.