The Interior Department has joined the Environmental Protection Agency in advancing policies to require its regulatory decisions be based on scientific studies for which the underlying data is publicly available.
In a directive titled “Promoting Open Science” released late last month, the Department of the Interior outlined steps it plans to take to increase the transparency of its decision-making. Those steps include requiring the department’s offices to make the data from scientific studies they use to develop regulations publicly available, with certain exceptions for sensitive information.
The move follows in the footsteps of the Environmental Protection Agency, which advanced a similar requirement through a proposed rule issued by Administrator Scott Pruitt shortly before he resigned in July. After receiving thousands of public comments during an extended input period that closed in August, the proposal now awaits final action by Acting EPA Administrator Andrew Wheeler.
Proponents of the new policies argue the agencies’ current decision-making procedures allow them to rely on opaque studies to support preordained conclusions. Critics assert the professed concern over transparency is insincere and that the policies are actually designed to hobble agencies’ ability to justify and enact regulations.
(Image credit – DOI)
DOI says directive will prevent it from ‘cherry picking science’
The stated purpose of the DOI directive is to ensure the department makes decisions based on the “best available science” and provides the public with sufficient information to “substantively evaluate the data, methodology, and analysis” it uses. DOI has regulatory authority over a number of land and wildlife conservation matters, such as enforcement of the Endangered Species Act.
Describing the motivation for the directive, a DOI spokesperson stated,
This order came about in response to perennial concerns that the department has not been providing sufficient information to the public to explain how and why it reaches certain conclusions, or that it is cherry picking science to support pre-determined outcomes.
The policy directs all offices within DOI to “utilize and prioritize publicly available, reproducible, peer-reviewed science to the extent possible.” The offices also must justify any instances in which decisions rely on scientific findings that “are not supported by publicly available raw data, analysis, or methodology, have not been peer reviewed, or are not readily reproducible.”
That provision appears to grant the department flexibility to use studies lacking publicly available data for certain types of decisions. However, for proposed and final regulations, the policy states the department “shall” make the associated scientific data, analyses, and methodologies “publicly available with sufficient specificity to allow meaningful third party evaluation and reproduction.” It also requires that all grants and contracts used to acquire third-party research permit the department to “publicly release associated data, analysis, methodology, reports, conclusions, or other resulting analysis.”
DOI indicates it will implement the policy through a rulemaking process that provides an opportunity for public comment.
DOI and EPA stressing need for greater reproducibility
The emphasis on reproducibility is a key similarity between the DOI and EPA directives, and both cite many of the same policy documents as justification for new transparency requirements.
In particular, both reference President Trump’s executive orders on “Enforcing the Regulatory Reform Agenda” and “Promoting Energy Independence and Economic Growth” as foundational motivations for action. The former order identifies regulatory decisions that are “insufficiently transparent to meet the standard for reproducibility” as a central concern. The latter states that environmental regulations must be developed using “transparent processes that employ the best available peer-reviewed science and economics.”
The agency directives also cite an Obama-era memorandum on scientific integrity as evidence of bipartisan support for increasing the transparency of scientific inputs to government decisions. However, that memo only explicitly calls for agencies to make the underlying scientific “findings” publicly available, not necessarily the associated data.
Another important commonality is that both directives include a clause permitting their requirements to be waived on a case-by-case basis to protect privacy, confidential business information, or national security.
Congressional debate centers on sincerity of ‘secret science’ concerns
On Oct. 3, a Senate Environment and Public Works Committee hearing titled “Oversight of the EPA’s Implementation of Sound and Transparent Science in Regulation” offered a new window into the debate over the EPA proposal. The hearing was convened by Regulatory Oversight Subcommittee Chair Mike Rounds (R-SD), who is the sponsor of the “Honest and Open New EPA Science Treatment (HONEST) Act,” which would enshrine similar transparency requirements in statute. The DOI directive was not discussed.
This is the first time the Senate has held a hearing on the EPA proposal. Arguments aired at the latest hearing were largely similar to those made in the House during debate on its version of the "HONEST Act," which that chamber approved on a mostly party-line vote last year.
Rounds spoke favorably of EPA’s proposal, asserting a lack of transparency at EPA leads the agency to “seek out the science that supports a predetermined policy outcome rather than relying on the best available science.” He also expressed confidence that EPA could adequately redact sensitive information by drawing on de-identification procedures already used by the Department of Health and Human Services.
Committee Chair John Barrasso (R-WY) likewise expressed concern about EPA relying on “secret science.” Barrasso is a co-sponsor of the "HONEST Act" and in previous sessions of Congress was the primary sponsor of its predecessor, called the “Secret Science Reform Act.”
Meanwhile, Democratic members argued EPA’s proposal could preclude the use of many relevant scientific studies, such as those that rely on confidential personal health data, and questioned the sincerity of its stated rationale.
Sen. Sheldon Whitehouse (D-RI) asserted the proposal's lineage can be traced to past efforts by the tobacco industry to influence the use of science in public health regulation. In a 54-page comment submitted on the proposal, he and eight other Senate Democrats make the case that it is an extension of a decades-long industry-backed campaign to hamstring EPA “under the guise of defending ‘sound science’ and defeating ‘secret science.’” They also argue the waiver provision in the proposed role could allow the EPA administrator to shield studies funded by industry from scrutiny.
Experts testifying before the committee expressed similarly divergent opinions on the proposal. Edward Calabrese, a toxicologist at the University of Massachusetts at Amherst and one of the two majority-invited witnesses, said it is an “excellent start” that should be extended to encompass, for instance, data EPA considered but ultimately did not use in any given rulemaking.
The minority-invited witness, American Association for the Advancement of Science CEO and former Democratic congressman Rush Holt, called the rule an “insidious dodge” that is being used to advance a deregulatory agenda rather than address a sincere concern about the adequacy of scientific peer review.
“The proponents of the rule say they want to eliminate ‘secret science.’ There is no secret science,“ Holt said, adding,
The open secret is that the proponents of the rule are not seeking a better scientific process. They appear to be seeking a way to cherry-pick research in order to loosen regulation.
Whether EPA intends to substantially modify the proposed rule is unclear, as is its timeline for issuing a final version. EPA’s Science Advisory Board has requested the agency consult the board before proceeding, noting that the “precise design of the proposed rule appears to have been developed without public process for soliciting input specifically from the scientific community.”