By Genna Reed, Union of Concerned Scientists
We already know that the production of Administrator Scott Pruitt’s rule to restrict science at the EPA was purely political, but it’s possible that there’s a whole new layer of politics that went on at the White House level as well.
On Thursday April 19, the White House Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA) received a draft proposed rule from the EPA titled “Strengthening Transparency and Validity in Regulatory Science.” It was signed promptly by Administrator Pruitt on Tuesday. At first, the OMB’s website showed its review completion on Wednesday (meaning that Pruitt had signed the document before it was cleared by the White House), but then later in the week OMB backdated its review completion date to Monday. That means that not only is there likely some funny business going in between the EPA and OIRA, but OIRA had four days (and little more than one to two full work days) to review a proposed rule that would dramatically impact the way that EPA uses science in future rulemakings.
In just a couple days of OIRA review, a UCS analysis of the rule before and after review shows that it grew by four pages and was narrowed to include rules considered to be “significant regulatory actions” and those with dose response data and models that underlie “pivotal regulatory science.” While the docket does not currently include details on who made those changes, if OIRA staff was responsible for changing the scientific basis of this rule, there is certainly reason to be concerned. White House review under Executive Order 12866 is supposed to be limited to cost benefit analysis and overlap with other agencies and should in no way change the scientific content of the agency’s work. Interference from the White House in this area doubles down on the already implicit affront to scientific integrity at EPA that this rule represents.
Not only are there questions about OIRA’s role in changing the content of the rule, but the rule’s mad dash through White House review is not normal even by Administrator Pruitt’s standards. OIRA review of proposed rulemakings, required under President Bill Clinton’s Executive Order 12866, is supposed to take under 90 days with the possibility to extend to 120 days if it is absolutely needed. If we operate under the assumption that a 90-day review is an adequate amount of time for OIRA to review a rule, make sure the costs and benefits have been thoroughly analyzed, allow time for interagency review and meetings with stakeholders, and then suggest changes to the agency, exactly how inadequate is a 1 to 2 day review? According to OIRA’s regulatory review data, since the time that Pruitt has been at EPA, the agency has reviewed 41 rules that were not economically significant (including the policy in question). The average review time for those rules? 52 days. In fact, only 6 other rules have gone through review in less than a week at the EPA in this period, several of which were addendums to rules (like definitions, delays, or stays).
So what’s the problem with such a quick turnaround from the White House?
UCS has in the past taken issue with extensive delays in OIRA review, especially under the Obama administration, that have held up important science-based public health protections in regulatory limbo. While an overly long OIRA review period bogs down the regulatory process, a dramatically swift review process may allow rules to be proposed without the proper analysis to back it up. This is precisely what we’re now seeing with the EPA’s proposal to restrict science. In it, the EPA claims it’s not an economically significant rule, citing no analysis on the potential costs and benefits of the rule. It calls for a system to make scientific data publicly available but cites no existent database that would be able to handle all of EPA’s “pivotal regulatory science.” It does not include protections for privacy for confidential business information and it gives the EPA administrator the ability to waive rules from the requirements on a case by case basis. And finally, it reveals just how feeble the rule is by posing 25 substantive questions (almost four pages-worth) to commenters for them to answer in 30 days— the shortest comment period window possible for a rule.
UCS has submitted a comment to the EPA asking for an extension to this woefully insufficient comment period for such a sweeping rule and we are joined by many other organizations who are doing the same. House Science Committee Ranking Member Eddie Bernice Johnson and Energy & Commerce Environment Subcommittee Ranking Member Tonko were joined by 63 democratic colleagues on a letter calling for a 90-day comment period because “regardless of viewpoint, there is agreement that the proposed rule would be a significant change in how the agency considers science in policymaking.” It is imperative that Administrator Pruitt heeds this call to ensure all stakeholders have a chance to meaningfully participate in this process, which has been bungled in a variety of ways since this rule began as just a twinkle in Lamar Smith’s eye.