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Roll Call: The good science scam and an undemocratic provision

Some members of Congress apparently do not want agencies to regulate powerful agricultural and pharmaceutical interests in order to protect the public from dangerous risks. Yet, rather than say that — and be held accountable to the electorate for the consequences — they have developed what has become a standard, indeed almost boilerplate pretext to hide their endgame.

Specifically, they have drafted a provision snuck in as a rider to a farm bill that requires agencies to develop elaborate “high standards” for the use of science before they can regulate. Even more problematic than their obscurity is the fact that rather than deferring to the scientific community’s idea of what these high scientific standards should be, congressmen establish the rules of the game on their own. Given their politically-charged origins, it is thus not surprising that these congressionally developed rules are decidedly not in the public interest, nor are they consistent with the true “high standards” of science.

“Good science” sounds like a good thing, like motherhood and apple pie. But, those who spend their lives studying the tedious details of regulations and laws understand that there is plenty at stake in this type of provision. Most obvious is the fact that complying with the additional scientific procedures will slow the agencies’ work further still as they invest added effort into the new ambitious procedures and prepare for inevitable litigation challenges. Lawyers call these types of added mandatory provisions “attachment points,” because high stakes players can latch onto them and use them to bring a seemingly endless stream of legal challenges against the agency, slowing down its work to a snail’s pace.

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Jane Lubchenco's Legacy at NOAA

Cross-posted from Legal Planet.

NOAA administrator Jane Lubchenco has announced that she will leave her post at the end of February. Her letter to NOAA employees, reprinted in the Washington Post, cites the difficulty of maintaining a bi-coastal family life. Dr. Lubchenco, a distinguished marine biologist, has put in four years at the helm of NOAA, as much time as reasonably could be expected.

She was one of President Obama’s earliest nominees, named before his inauguration as part of a “dream team” of distinguished research scientists he brought into high-level government service in partial fulfillment of his inaugural promise to restore science to its rightful place. While that promise remains, in my view, unfulfilled, it hasn’t been for lack of trying on Lubchenco’s part. Of NOAA’s accomplishments during her tenure, the one I attribute most directly to her influence is adoption of a strong scientific integrity policy. The White House mandated that federal agencies develop scientific integrity policies, but provided precious little guidance or leadership. Most agencies simply imported research misconduct policies, essentially putting the entire onus of ensuring scientific integrity in the regulatory arena on career scientific staff. As I’ve explained in some detail in this article, that approach misses the point. The so-called scientific integrity problem has a lot more to do with the relationship between political appointees and the career scientists they oversee than with deliberate falsification by those scientists. If you don’t believe that, take a quick look at the Department of Interior Inspector General’s reports on the Julie MacDonald affair, here and here. NOAA’s policy, alone among those I’ve looked at, takes on that relationship. It includes a “Code of Ethics for Science Supervision and Management” which, among other things, expressly forbids intimidating employees into altering or censoring scientific findings. You wouldn’t think that was necessary, but look again at the MacDonald report. Then ask yourself why the Department of Interior hasn’t put even that minimal limit on managers in its scientific integrity policy.

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(Puget) Sound Science

The current debate surrounding Washington State’s sediment cleanup and water quality standards provides another example of regulated industry calling for “sound science” in environmental regulation, yet working to undermine it.  Industry has worked to delay updates to water quality standards based on the most recent scientific studies, despite the fact that the current standards are based on decades-old data  and don’t adequately protect human health.  Most recently, industry has sought to weaken any forthcoming standards by misrepresenting scientific studies of contamination in Puget Sound and other marine waters and its impact on salmon. 

When agencies set standards limiting toxic pollution in our waters, they aim to protect humans exposed to these toxics by eating fish.  Fish consumption is the primary route by which people are exposed to a host of toxic contaminants, including PCBs, dioxins, and mercury.  Washington’s current water quality standards enlist a “fish consumption rate” (FCR) based on surveys of people’s fish consumption practices back in 1973-74. Although more recent survey data have existed for some time, the state’s Department of Ecology has declined to update its standards, even though its FCR of 6.5 grams/day – just one fish meal per month – grossly understates contemporary consumption rates for Washingtonians, including members of the fishing tribes, the Asian and Pacific Islander community, and others.  An increase in the FCR would mean more protective environmental standards.  Industry, for its part, has weighed in with calls to retain the current FCR – hardly an embrace of the state of the science.

In recent public comments, industry has taken the tack of gutting the FCR.  They have argued that people’s intake of salmon ought to be excluded from the FCR, on the theory that salmon, which are anadromous (i.e., they spend a portion of their lifecycles in freshwater and saltwater environments), obtain their contaminant body burden outside of waters of regulatory concern.  If salmon are getting their contaminants elsewhere, this argument goes, Washington ought not seek pollution prevention or cleanup from industries within its jurisdiction.  Because salmon comprise a considerable portion of Washingtonians’ fish intake, to exclude salmon from the FCR would be to decrease significantly the protectiveness of the environmental standards.

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ACUS Must Ensure Neutrality and Cease Close Alliances with Industry Groups, Member Scholars Say in Letter

CPR President Rena Steinzor and Member Scholar Thomas McGarity sent a letter this morning to Paul Verkuil, Chairman of the Administrative Conference of the United States (ACUS), taking the independent federal agency to task for its increasingly apparent bias toward the views of industry groups and its troubling alliance with current and former officials at the White House Office of Information and Regulatory Affairs (OIRA).  By repeatedly partnering with groups engaged in destructive battles with the agencies that write protective regulations, ACUS deviates from its stated mission of “providing nonpartisan expert advice and recommendations for improvement of federal agency procedures,” argue Steinzor and McGarity.

After losing its funding in 1995, ACUS was officially revived in 2010 at the urging of a broad spectrum of experts and organizations, including public interest groups, some of which are represented among ACUS’ membership.  As Steinzor and McGarity write:

[One] reason advanced for ACUS’ reemergence was the inability of existing institutions, such as OIRA itself, to be reliably neutral and independent in studying ways to improve the administrative process.  If ACUS comes to be seen as merely another vehicle for OIRA loyalists and their industry allies to press their agendas and drown out opposing voices, then ACUS will lose part of its distinctive raison d'être.

In that event, they suggest, many of ACUS’ original supporters may be forced to reassess its value and even withdraw from the organization.

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New Paper: How Chemicals Manufacturers Seek to Co-opt Their Regulators

This post was written by CPR President Rena Steinzor and Policy Analyst Wayland Radin.

Today CPR releases Cozying Up: How the Manufacturers of Toxic Chemicals Seek to Co-opt Their Regulatorsexposing the work of the International Life Sciences Institute (ILSI) and Toxicology Excellence for Risk Assessment (TERA), two industry advocacy groups that have undue influence on the regulation of toxic chemicals.  The two firms specialize in a particularly insidious brand of “dirty” science by recruiting EPA experts to co-author papers and participate in policy-making workshops that are heavily biased toward manufacturer interests. 

Americans might reasonably assume that toxic chemicals undergo rigorous, independent testing before they enter the stream of commerce. Regular readers know that’s hardly the case. The Toxic Substances Control Act (TSCA) grandfathered in tens of thousands of chemicals already in use, and new chemicals undergo only a perfunctory, 90-day “pre-manufacture review” by the EPA, which under even the best circumstances must rely on a comparison of the chemical structure of the new chemical to the structures of existing chemicals and whatever information the manufacturer has chosen to submit regarding the chemical. Because research by a chemical’s producer is often the primary resource available to regulators who make crucial public health decisions, independent experts have examined whether industry-sponsored studies produce different results than comparable government-funded work. An empirical review of 1,140 biomedical studies determined that "industry-sponsored studies were significantly more likely to reach conclusions that were favorable to the sponsor than were non-industry studies." Concerned by these findings, but unwilling to reject industry-sponsored science out of hand, the world’s most prestigious scientific journals require authors to disclose the source of their work so that potential biases are evident to readers.

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Obama Campaign Inches Closer to Asserting that Coal Does Not Kill People

Last week, President Obama’s campaign earned green criticism for airing a radio ad in Ohio that portrayed the President as pro-coal, and Mitt Romney as anti-coal. The ad asserted that Obama has been good for the coal industry, and then said:

And Mitt Romney? He’s attacking the president’s record on coal. But here’s what Romney said in 2003, at a press conference in front of a coal plant: “I will not create jobs or hold jobs that kill people. And that plant, that plant kills people.” So when it comes to coal, ask yourself, who’s been honest and who’s playing politics?

The ad was certainly saying Romney’s 2003 quote was a bad thing, which understandably infuriated environmental groups. But the way the contrast is set up in the last sentence, there's sufficient wiggle room to argue that the ad didn’t quite say that Romney’s statement had been incorrect.

On Tuesday, the Obama campaign inched a bit further down that path with a slightly more declarative statement. From Politico this morning, on the back-and-forth between the campaigns Tuesday:

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EPA's New Framework for Human Health Risk Assessment: Clean Science Versus Dirty Costs and Benefits

Last month, EPA published for public comment a draft “framework” for human health risk assessment.  It is the culmination of years of work done by EPA staff who are part of the Risk Assessment Forum, a select team of experts from various offices throughout the agency whose efforts were overseen by the Office of the Science Advisor.  Billed as a response to the National Research Council’s Science and Decisions:  Advancing Risk Assessment (a.k.a. the “Silver Book”), the Framework really only addresses one of NRC’s recommendations.  And it proposes policy changes that threaten scientific integrity.

The Silver Book’s Chapter 8 looks innocuous at first glance, suggesting that improvements in EPA’s risk assessment process should include reforms that “[make] risk assessments more useful for informing risk-management decisions.”  But the simple utilitarian façade masks a proposal that would induce a revolutionary shift in the way EPA risk assessments are conducted.  To make risk assessments more useful, NRC proposed a process wherein risk managers (the agency policymakers with the closest ties to political appointees) would sit down with risk assessors (the agency scientists who read the scientific studies and interpret their meaning in terms of potential risks to the public) before the risk assessment begins, with an objective of defining the scope of the risk assessment.  The concept of risk assessors and risk managers working together is not unreasonable, but as with any practical effort to put in place a general recommendation, the devil is in the details. 

How best to maintain protective distance between risk assessors and risk managers is a controversial subject.  Without independence from policymakers and their agendas, risk assessors are extraordinarily vulnerable to manipulation.  The high profile case of the Fish and Wildlife Service’s Julie MacDonald, a Bush Administration political appointee who tampered with scientific evidence behind endangered species listings shows just how far these problems can go.

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Fish for the Future: Our Health and Livelihoods Depend on It

When environmental agencies set standards limiting toxic pollution in our waters, they theoretically aim to protect people who are exposed to these toxics by eating fish.  Currently, Washington state’s water quality standards protect only those who consume no more than one fish meal per month.  That means that those of us who eat more fish than this do so at our peril.    

Washington’s Department of Ecology had announced some years back that it intended to update the fish consumption rate (FCR) that in turn sets pollution limits for water and sediment cleanup across the state.  This was a welcome and long overdue step.  Washington’s current water quality standards are based on surveys of people’s fish consumption practices back in 1973-74.  Its cleanup standards are only slightly less outdated.

But Ecology’s effort is being fought by the industries responsible for contaminating Washington’s waters with such toxic pollutants as PCBs, mercury, and dioxins.  A more accurate FCR would mean more protective environmental standards, and these industries don’t want to have to pay the bill for reducing or cleaning up their own pollution.  And it appears that Ecology may be succumbing to industry pressure: it had been saying it would soon issue new standards, but now the timeline for updating its water quality and sediments rules may be uncertain.

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EPA Chemical Assessment Advisory Committee Nominees and Conflict of Interest Concerns

CPR President Rena Steinzor and Senior Policy Analyst Matthew Shudtz sent a letter to EPA Administrator Lisa Jackson this morning concerning the EPA’s Integrated Risk Information System (IRIS). From the letter:

We are concerned that the recent establishment of the SAB Chemical Assessment Advisory Committee (CAAC) institutionalizes yet another opportunity for potentially regulated parties to disrupt the smooth development of new IRIS profiles. We are writing to encourage you to pay special attention to the nominees’ actual and perceived conflicts of interest as you sign off on the final membership list for the subcommittee. Of the 116 nominees, we count only four individuals who work for environmental NGOs. By contrast, five individuals from the Dow Chemical Company alone have been nominated, as have five other people employed by potentially regulated parties and 21 individuals whose consultancy firms stand to gain or lose significant business depending on the outcome of CAAC deliberations. … Individuals whose employers (or employers’ direct competitors) are potentially regulated parties should not be invited to be committee members.

The letter makes a broader point about the role of further review of IRIS profiles, which undergo at least seven reviews by people or entities outside the IRIS office:

For years, we have argued that the draft toxicological profiles produced by IRIS staff are subject to an excessive number of external reviews. … Given the Federal Advisory Committee Act’s requirements about transparency and public participation, we believe that the CAAC review of draft IRIS profiles should replace the independent expert peer review and be melded with the listening session and public review and comment period.

The letter is here.

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Scientific Integrity at Risk in Fracking Policy Debate

The natural gas industry’s campaign against increased federal oversight of shale gas development has recently produced a spurt of “dirty science” minimizing the environmental risks of hydraulic fracturing, or “fracking.” 

The University at Buffalo, the branch of the State University of New York where I teach, recently launched its new “Shale Resources and Society Institute” (SRSI) by issuing a report last month giving the “first quantitative data review of Pennsylvania’s regulation of hydraulic fracturing.” The report examined state environmental law violations during 2008-2011, a period when drilling in Pennsylvania shale increased substantially.  A press release from the university – widely quoted in the national news – quoted the lead author’s description of the findings: “now we have comprehensive data that demonstrates, without ambiguity, that state regulation coupled with improvements in industry practices result in a low risk of an environmental event occurring in shale development, and the risks continue to diminish year after year.”   Shortly afterward, these comments were repeated in Congressional testimony aimed at pushing back federal regulation of fracking.  Speaking before a subcommittee of the House Committee on Oversight and Governmental Reform, Michael Krancer, Secretary of the Pennsylvania Department of Environmental Protection, highlighted the report as evidence that “outside experts agree” about the success of existing state environmental regulation: 

“There is no question that states can do and are doing a better job regulating the oil and gas extraction technique of hydraulic fracturing within their borders than the federal government could do.”

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