By Yogin Kothari, Union of Concerned Scientists
Last week, Senator Rob Portman introduced his version of the Regulatory Accountability Act (RAA), a bill that would significantly disrupt our science-based rulemaking process. A version of this inherently flawed, impractical proposal has been floating around Washington for nearly seven years now, and the latest, S. 951, is just as troubling as previous iterations.
The impact of the RAA will be felt by everyone who cares about strong protections and safeguards established by the federal government. Think about food safety, environmental safeguards, clean air, clean water, the toys that your kids play with, the car you drive, workplace safety standards, federal guidance on campus sexual assault, financial safeguards, protections from harmful chemicals in everyday products, and more. You name it, the Portman RAA has an impact on it.
The Portman RAA is at best a solution in search of a problem. It imposes significant (and new) burdensome requirements on every single federal agency charged with using science to protect consumers, public health, worker safety, the environment, and more at a time when Congress and the president are cutting agency resources. It also requires agencies to finalize the most “cost effective” rule, which sounds nice, but in practice is an impossible legal standard to meet and would most likely result in endless litigation. This requirement is emblematic of the overall thrust of the bill, a backdoor attempt to put the interests of regulated industries ahead of the public interest.
Basically, because there isn’t public support for repealing the Clean Air Act, the Clean Water Act, the Consumer Product Safety Act, and other popular laws that use evidence to protect the public interest (including civil rights and disabilities laws, worker protection laws, transportation safety laws, and more), the Portman RAA weakens the ability of agencies to implement these laws by rewriting the entire process by which safeguards for Americans are enacted. In doing so, the Portman RAA would impact everyone’s public health and safety, especially low-income communities and communities of color, which often face the greatest burden of health, environmental, and other safety risks.
For this blog, I have chosen to focus on what the Portman RAA means for the scientific process that is the foundation for federal rulemaking. For information on all of the other troubling provisions in the legislation, legal scholars at the Center for Progressive Reform have a neat summary here.
Here are 5 destructive provisions in the Portman RAA as they relate to science and science-based rulemaking. Bear with me as we take this journey into administrative law Wonkville.
1. The RAA ignores intellectual property, academic freedom, and personal privacy concerns.
S. 951 includes harmful language similar to the infamous HONEST Act (previously known as the Secret Science Reform Act) and applies it to every single agency. While the Portman RAA language (page 7 starting at line 19 and page 25 starting at line 14) includes some exemptions that address the criticisms UCS has made of the HONEST Act, the bill would still require agencies to publicly make available “all studies, models, scientific literature, and other information” that they use to propose or finalize a rule.
The exemptions fall considerably short because the language has zero protections for intellectual property of scientists and researchers who are doing groundbreaking work to keep America great. For most scientists, especially those in academia and at major research institutions, much of this work, such as specific computer codes or modeling innovations, is intellectual property and is crucial for advancement in scientific understanding as well as career advancement.
In effect, this provision of the Portman RAA would prevent agencies from using cutting-edge research because scientists will be reluctant to give up intellectual property rights and sacrifice academic freedom. In addition, many researchers don’t or can’t share their underlying raw data, at least until they have made full use of it in multiple publications.
Given that the research of scientists and the expertise built up by labs is their scientific currency, S. 951’s intellectual property and academic privacy language would lead to one of two outcomes:
- One, it would stifle innovation, especially when it comes to public health and safety research, as many early career scientists may not want to publicly share their code or computer models and undermine their careers. Scientists could risk all their ideas and work being pirated through the rulemaking docket if a federal agency wanted to use their information as part of the basis for proposing and/or finalizing a regulation.
- Two, agencies wouldn’t be able to rely on the best available science in their decision-making process because those who have the best information may not want to make their intellectual property public. And of course, agencies are required to propose and finalize regulations based on the best available science. This is even reaffirmed by the Portman RAA (more on that later). Thus, you have a catch-22.
Like the HONEST Act, this language fundamentally misunderstands the scientific process. There is no reason for anyone to have access to computer models, codes, and more, to understand the science. Industry understands this very well because of patent law and because of the trade secrets exemptions (industry data would be exempted from the same disclosure requirements as intellectual property and academic research) but there is no equivalent protection for scientists, whose basic goal is to advance understanding of the world and publish their work.
And while the exemptions attempt to ensure protections of private medical data, they do not go far enough. For example, agencies that rely on long-term public health studies to propose and finalize science-based regulations could still be forced to disclose underlying private health data related to a study participant’s location and more, all of which may lead to someone’s privacy being put at risk.
2. The RAA puts science on trial.
The Portman RAA provides an opportunity for industry to put the best available science that informs high-impact and major rules on trial. In a provision (page 16 lines 13-17) that reminds me of Senator Lankford’s radical BEST Act, S. 951 will give industry an opportunity to initiate an adversarial hearing putting science and other “complex factual issues that are genuinely disputed” on trial.
But what does it mean for science and other facts to be genuinely disputed? The RAA is silent on that point. Hypothetically, if an industry or any individual produces their own study or even an opinion without scientific validity that conflicts with the accepted science on the dangers of a certain chemical or product (say atrazine, e-cigarettes, chlorpyrifos pesticide, or lead), federal agencies charged with protecting the public using best available science would be forced to slow down an already exhaustive process. The thing is, you can always find at least one bogus study that disagrees with the accepted facts. If this provision had been around when the federal government was attempting to regulate tobacco, the industry would have been able to use it to create even more roadblocks by introducing bogus studies to dispute the facts and put a halt to the public health regulations.
This is just another way to elongate (and make less accessible to the public) an already exhaustive rulemaking process where everyone already can present their views through the notice-and-comment period. This provision plays up the “degree of uncertainty” that naturally exists in science, while ignoring a more sensible “weight of evidence” approach, which is exactly what opponents of science-based rulemaking want. This adversarial hearing process does nothing to streamline the regulatory process, but it does make it harder for federal agencies to finalize science-based public health, safety, and environmental protections. The Scopes-Monkey trial has already taught us that putting science on trial doesn’t work. It was a bad idea nearly 100 years ago, and it’s a bad idea today.
3. The RAA adds red tape to the science-based rulemaking process.
The Portman RAA, ironically, includes duplicitous language that requires proposed and final rules to be based on the “best reasonably available” science (page 8 lines 10-14 and page 25 lines 14-18). The thing is, this already happens. Many underlying authorizing statutes, such as the Clean Air Act, have this requirement, and to the extent that this bill is supposed to streamline the regulatory process, this appears to do the opposite. If anything, this is litigation bait for industry, meaning that the legally obscure language could be used to sue an agency and prevent science-based rulemakings to be implemented.
The thing is, anyone can already challenge the scientific basis of regulations since they are already required to be grounded in facts. This just rests upon a faulty assumption that agencies aren’t doing their jobs. The bottom line? Through this and other provisions, S. 951 adds redundancy and procedure when the supporters of the bill are claiming to get rid of it.
4. The RAA has imprecise language that could force burdensome requirements on agency science.
The Portman RAA uses vague language to define agency “guidance” (page 2, lines 14-16) that could be interpreted to encompass agency science documents, such as risk assessments. For example, if an agency conducts a study on the safety of a chemical, finds a health risk associated and publishes that document, would that study be subject to the burdensome RAA requirements on guidance (i.e. go through a cost-benefit analysis)? The language is ambiguous enough that this remains an open question.
Furthermore, by adding additional requirements for guidance documents, such as cost-benefit analysis, it would make it harder for regulators to be nimble and flexible to explain policy decisions that don’t have the binding effect of law, or to react to emerging threats. For example, the Centers for Disease Control and Prevention (CDC) has frequently used guidance documents to quickly communicate to the public and healthcare providers about the risks associated with the Zika virus, an emerging threat that required a swift response from the federal government. Just imagine the amount of time it would take for the CDC to effectively respond to this type of threat in the future if the agency was forced to conduct a cost-benefit analysis on this type of guidance.
Overall, many agencies use guidance as a means of explaining how they interpret statutory mandates. Because they don’t have the effect of law, they can be easily challenged and modified. The new hurdles simply prolong the guidance process and make it more difficult for agencies to explain interpretations of their legal mandates.
5. The RAA increases the potential for political interference in agency science.
The Portman RAA would give the White House Office of Information and Regulatory Affairs (OIRA) the power to establish one set of guidelines for risk assessments for all of the federal science agencies (page 33 lines 16-18). The thing is, this one-size-fits-all idea is unworkable. Individual agencies set guidelines for risk assessments they conduct because different issues require different kinds of analysis. OIRA is filled with economists who are not scientific experts that can appropriately understand public health and environmental threats. Under this bill, OIRA would also determine the criteria for what kinds of scientific assessments should be used in rulemaking. This office should not have the responsibility to put forward guidelines dictating agency science. This is a clear way to insert politics into a science-based decision. My colleague Genna Reed will be expanding on this point specifically later this week because of how troubling this provision is.
For a proposal that is aimed at streamlining the regulatory process, the question must be asked, for whom? If anything, the Portman RAA grinds the issuance of science-based protections to a halt, and adds additional red-tape to a process that is already moving at a glacial pace.
The bottom line is that this latest version of the RAA, albeit different from previously introduced versions in the Senate and somewhat distinct from the House-passed H.R. 5, leads to the same outcome in reality: a paralysis by analysis at federal agencies working to protect the public from health and environmental threats and a potential halt to the issuance of new science-based standards to ensure access to safe food, clean air and clean drinking water, and other basic consumer protections.