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Environment Policy

Brief # 105 

Trump’s EPA Seeks to Hide  Science with New “Transparency” Rule

By Jacob Morton, 1/11/2021

Policy

On January 5, the US Environmental Protection Agency (EPA) finalized a new rule requiring that any scientific evidence that is to be considered by the agency when crafting new environmental regulation, such as limiting the use of certain chemicals or determining levels of allowable pollution, must make all relevant data publicly available (including study participants’ personal medical records) to be considered credible. The rule specifically targets “dose-response” studies that aim to show the effects of exposure to certain toxins and pollutants on human health.

For instance, in the 1990s, a Harvard study, called the Six Cities study, “drew on anonymized, confidential health data from thousands of people to better establish links between air pollution and higher mortality.” The study was “instrumental in crafting health and environmental rules” and “led to new limits on air pollutants under the Clean Air Act.” The EPA’s new rule would require that same Harvard study to officially release all its subjects’ personal and confidential medical information, otherwise risk being categorized as weak or not credible, and potentially lead to rollbacks of its associated environmental policies.

The new rule, known as the Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information Rule, claims not to require the release of Personal Identifiable Information (PII) or Confidential Business Information (CBI). The EPA’s official news release announcing the new rule states that “when proposing a significant regulatory action, the Agency is required to clearly identify and make publicly available the science informing the rule.” However, the rule also states that, “Under certain criteria outlined in the rule, the Administrator can grant case-by-case exemptions to the requirements of this rule.”

Attempts to discredit influential, peer-reviewed science that runs counter to industry interests, in the name of “transparency,” is not new. Early in the Trump administration, former Texas congressman Lamar Smith unsuccessfully attempted to push the “Secret Science Reform Act” through congress, and the idea has floated around the EPA ever since. The New York Times has even traced the idea back to the Tobacco Industry’s attempts to discredit studies warning of harm from second-hand smoke.

 

Analysis

While a rule to require complete transparency of any study used as pivotal scientific evidence seems practical, it becomes problematic when a study uses patients’ confidential medical records. Many believe that by requiring the release of patients’ personal medical information used in these studies, the EPA will no longer be required to consider the evidence presented by studies containing the clearest indications of public harm, because those studies will not legally be able to release their subjects’ medical records. Environmentalists and public health experts fear this will lead to weaker protections or a decision not to regulate at all.

EPA Administrator Andrew Wheeler, praised the new rule for its angle on transparency, saying, “We’re going to take all this information and shine light on it, … It’s sunshine, it’s transparency.” Meanwhile, medical experts say the new rule, “essentially blocks the use of population studies in which subjects offer medical histories, lifestyle information and other personal data only on the condition of privacy. Such studies have served as the scientific underpinnings of some of the most important clean air and water regulations of the past half century.”

Cathy McMorris Rodgers, Ranking Member for the House Committee on Energy and Commerce, writes of the rule, “You can’t expect people to believe in science if data is kept secret. It’s impossible. Transparency, public access to underlying data, rigorous review are all key to building trust.” However, critics of the rule say it threatens patient confidentiality and privacy of individuals in public health studies. Richard Revesz, an expert in pollution law at the New York University School of Law says the kinds of studies being targeted are those which would “present the most direct and persuasive evidence of pollution’s adverse health effects” (“dose-response” studies). He says, “Ignoring them will lead to uninformed and insufficiently stringent standards, causing avoidable deaths and illnesses.”

Senator Tom Carper of Delaware, the ranking Democrat on the Senate Environment and Public Works Committee, has criticized the new rule, saying, “We’re going to put at risk the health of a whole lot of people and maybe even lead to their deaths.” Carper’s staff have pointed to several studies that could be deemed ineligible for use by the EPA, including a March 2020 study that describes “how various coronaviruses react on surfaces with chemical agents,” and a 2003 study observing “a statistical correlation between SARS fatalities in China and higher air pollution.”

The Trump administration has already used the policy to deny findings from several epidemiological studies including one from Columbia University, that shows exposure to the pesticide chlorpyrifos (widely used on corn, soybeans, almonds, grapes, and golf courses) can stunt brain development in infants and young children. Had this new rule previously been in place, the E.P.A. under the Obama administration could not have made the case to regulate mercury pollution from power plants “because it could not have shown that the heavy metal impairs brain development” without releasing confidential medical records. Despite the administration’s enthusiasm for the new rule, Trump administration officials have been unable to provide any examples of policies that they say, “were wrongly enacted based on studies that did not make underlying data available.”

Dr. Mary Rice, pulmonary and critical care physician, and chairwoman of the environmental health policy committee at the American Thoracic Society says, “Right now we’re in the grips of a serious public health crisis due to a deadly respiratory virus, and there’s evidence showing that air pollution exposure increases the risk of worse outcomes.” Rice says of the new rule, “We would want E.P.A. going forward to make decisions about air quality using all available evidence, not just putting arbitrary limits on what it will consider.”

An anonymous senior transition official for the incoming Biden administration says the new rule is simply another attempt by Trump to “make it more difficult for the next administration to rebuild the government to do its job.” President-elect Joseph R. Biden has not yet commented on the new rule, but activists expect he will suspend and repeal it. Even if the rule remains in effect, President-elect Biden’s pick for EPA Administrator, Michael S. Regan, may still be able to exempt studies, on a case-by-case basis, from the rule. Advocacy groups such as the Environmental Defense Fund and the Union of Concerned Scientists have begun to discuss taking legal action.

Resources

Environmental Defense Fund

  • One of the world’s largest environmental organizations and a 501(c)(3) non-profit. Preserving the natural systems on which all life depends. https://www.edf.org/

Union of Concerned Scientists

  • The Union of Concerned Scientists is a national nonprofit organization founded more than 50 years ago by scientists and students at the Massachusetts Institute of Technology. The Union uses rigorous, independent science to solve our planet’s most pressing problems. https://www.ucsusa.org/

 

Learn More Sources Cited

Friedman, L. (2020, September 23). E.P.A. Rejects Its Own Findings That a Pesticide Harms Children’s Brains. Retrieved January 11, 2021, from https://www.nytimes.com/2020/09/23/climate/epa-pesticide-chlorpyrifos-children.html

Friedman, L. (2021, January 04). A Plan Made to Shield Big Tobacco From Facts Is Now E.P.A. Policy. Retrieved January 11, 2021, from https://www.nytimes.com/2021/01/04/climate/trump-epa-science.html?auth=login-email&login=email

Johnson, S. K. (2019, November 13). EPA still moving to limit science used to support regulations. Retrieved January 11, 2021, from https://arstechnica.com/science/2019/11/epa-still-moving-to-limit-science-used-to-support-regulations/

Knickmeyer, E. (2021, January 05). A final EPA rollback under Trump curbs use of health studies – The Boston Globe. Retrieved January 11, 2021, from https://www.bostonglobe.com/2021/01/04/nation/final-epa-rollback-under-trump-curbs-use-health-studies/

Price, A. (2021, January 7). Trump EPA’s Controversial “Secret Science” Policy Faces Pushback from Scientists. Retrieved January 11, 2021, from https://www.earthisland.org/journal/index.php/articles/entry/trump-epas-controversial-secret-science-policy-faces-pushback-from-scientists

Timmer, J. (2021, January 05). In a parting gift, EPA finalizes rules to limit its use of science. Retrieved January 11, 2021, from https://arstechnica.com/science/2021/01/in-a-parting-gift-epa-finalizes-rules-to-limit-its-use-of-science/

U.S. Environmental Protection Agency. (2021, January 05). EPA Finalizes Rule Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information. Retrieved January 11, 2021, from https://www.epa.gov/newsreleases/epa-finalizes-rule-strengthening-transparency-pivotal-science-underlying-significant

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