by Duggan Flanakin, ©2020
(Nov. 22, 2020) — Ballot harvesting, behind-the-curtains ballot counting and other hijinks have made transparency a critical issue this election year.
Meanwhile, as the U.S. Environmental Protection Agency celebrates its fiftieth birthday, political battles continue to rage over the extent of public, executive and congressional oversight, and access to research files, original data and other information used by the agency in taking legal actions against individuals, institutions and businesses. The latest salvos involve the first-ever “transparency” requirements for EPA guidance documents – requirements likely to be tossed out by a Biden Administration.
In October 2019, President Trump signed an executive order to curb what he called abuses of authority by unaccountable bureaucrats who were “imposing their private agendas” on Americans. “A permanent federal bureaucracy,” he observed, “cannot become a fourth branch of government unanswerable to American voters.” Nor should federal agencies be able to impose multi-billion-dollar regulations, while claiming studies used to justify them are proprietary, confidential or otherwise inaccessible.
This February, the EPA launched a new searchable portal to provide public access to agency guidance documents. When it was finalized in July, the EPA brought over 9,000 guidance documents out of the darkness and made the entire active guidance library available to the public for the first time.
in September, the EPA finalized a rule that significantly increases the transparency of guidance practices and amends the agency’s process for managing guidance documents. The rule establishes the first formal public petition process for asking the EPA to modify, withdraw or reinstate a guidance document.
You would think “transparency” would be universally practiced and praised. However, the Deep State, science establishment, activist and pressure groups, and Democratic Party politicians have been horrified. Some claimed the rule reveals and distorts EPA’s decision-making processes. Others said it risks exposing private medical data and other confidential information. Still others carped that the rule is a bad-faith ploy to hamstring the agency’s ability to regulate industries and individuals.
Indeed, last October, an unsigned article in Wired magazine (we can’t even have author transparency) claimed the regulation was a Zombie-like attempt to resurrect the Secret Science Reform Act. Horrors!
The proposed legislation merely attempted to end the EPA’s widespread practice of basing regulations and guidance on research whose details remain hidden behind confidentiality agreements and are not publicly accessible, and whose research data cannot be replicated or independently verified.
During Congressional hearings on the proposal, critics claimed transparency would force the EPA to exclude important studies to protect confidentiality agreements. FactCheck.org found that private data sometimes cannot be redacted. But it also acknowledged that the rule allows the EPA administrator to exempt regulations if releasing study data publicly (rarely) does conflict with protecting privacy. It also allows for alternatives to complete public release if the data actually include confidential information.
One of the most scandalous cases of regulatory secrecy (and presidential secrecy) involved the acid rain provisions of the 1990 Clean Air Act Amendments. President Bush and the EPA suppressed the findings of the 10-year, $537 million National Acid Rain Assessment Program (NAPAP), which had been authorized by President Carter.
To gain public support for the legislation, EPA scientists conjured up scary scenarios, claiming that sulfur dioxide emissions from coal-fired power plants combined with water in the air to form acid rain that polluted streams, lakes and rivers and damaged trees, wildlife and buildings. The NAPAP found that the acidity of a lake is determined as much (or more) by the acidity of local soil and vegetation as it is by acidic rain. The frightening scenarios were wildly exaggerated, to justify closing power plants.
Moreover, many of these lakes were historically acidic and fishless until around 1900, when logging removed the acid vegetation and made the soil slightly alkaline. After logging slowed to a halt (around 1915), the naturally acidic decaying vegetation built up again, and the lakes became acidic again. In many cases forests were also debilitated due to insects or drought – not acid rain.
Curiously, a 1991 paper by environmental law scholar Richard Lazarus argued that Congress should let EPA be more independent, while admitting that legislators and regulators alike “have rarely known the best way to respond to an environmental pollution problem at the time a statute was passed.” Lazarus further claimed, “Statutory prescription therefore is an especially risky endeavor [that] can lead to wasteful expenditures for pollution control and … to more, rather than less, environmental degradation.”
These realities, Lazarus argued, make congressional oversight problematical, especially because the scientific options proposed by regulators for solving pollution often conflict with the political interests of lawmakers. True. But what if the legislators’ science is corrupted by “dark money” and the perpetual quest for more agency funding? Or if the regulators’ science is corrupted or weaponized by White House or Deep State biases, agendas, censoring of certain views, or manipulation or fabrication of data?
(In a republic, at least theoretically, the political leadership is informed by a citizenry that has all the needed facts, and ultimately has the authority to decide whether or not to follow the particular scientific pathways favored by regulators. In a pure democracy, minority views can be deemed or made irrelevant.)
A 2018 CFACT report assessed the extent of the public information problem, noting that EPA regulations have the force of law and constitute 25% of all federal regulations. Congress often grants regulatory bodies immense power over how people and businesses may operate, without giving targeted entities even the same level of due process that the law affords to criminal defendants. We should expect that EPA expands these overly broad mandates even further.
Indeed, the CFACT report contends, federal bureaucrats, and EPA administrators in particular, determine “who gets a permit to operate, and who does not; what technologies a business must use; what lightbulbs are available for your homes; what gas we can buy; what chemicals can be used; where companies can mine; what local land use decisions will survive; and even where a pond can be built on private property.”
It concluded: “While the President has massive powers over war and peace, and sets the operating philosophy of federal agencies, the EPA Administrator has direct power over the business operations … and thus the economy … of the entire nation.”
In creating the Consumer Finance Protection Bureau in 2010, the Democrat-controlled Congress gave its director broad powers and virtual immunity from political scrutiny – with more power than the President. The Supreme Court only narrowly recognized this as an unconstitutional grant of power to an unelected official. The EPA Administrator’s powers should be equally restrained.
In a second October 2019 executive order, President Trump required that agencies inform individuals of regulatory cases against them, acknowledge their responses, and educate businesses about new regulatory impacts. This order too should be non-controversial, but could well be axed by a President Biden.
Under current law, those whose livelihoods are assaulted by regulatory bodies can challenge an agency in court only after the agency has sullied their reputations and prosecuted their alleged noncompliance. Even then, the environmental defendant typically loses, because courts have mostly upheld the agencies if their decisions are “rational,” even if (absent long-sought transparency) the agency has concealed any or all of its “public” (but secret) data and records that do not support its “reasoning.”
Ultimately, the future of EPA transparency (and openness in all government) rides on the final outcome of the 2020 Presidential election. It’s fascinating how entities that set arbitrary and ever-changing standards for “acceptable” speech, favor crude protests over peaceful assemblies, and seek to curtail entire industries – also see no reason to inform the public of the rationale behind their politicized “scientific” decisions on issues from climate change to COVID to all manner of environmental regulation.
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Duggan Flanakin is director of policy research for the Committee For A Constructive Tomorrow (www.CFACT.org).