by David Wojick
There is a recurring pattern of Federal agencies twisting science in order to support confiscatory actions. The agencies can get away with these tricks because there is a general lack of controls on how they use science when making policy, crafting regulations, etc.
There are a number of Laws and Executive Orders that serve to govern agency actions, but these are not directed at the use or misuse of science. For example, while the Paperwork Reduction Act requires OMB clearance of new regulations, it is primarily focused on the burden imposed by significant new rules.
Executive Order 12866 — Regulatory Planning and Review — mentions in passing using the best available science, but it is focused almost entirely on cost-benefit analysis. So is OMB’s guidance under Circular A-4 — Regulatory Analysis. The Regulatory Impact Analyses and related Technical Documentation developed under these rules typically do very little systematic analysis of the science in question.
The Administrative Procedures Act, as the name implies, is focused on rulemaking procedures, not substance and certainly not science.
Moreover, all of these controls are limited to regulatory actions. But the misuse of science can occur in many other sorts of agency actions.
The National Environmental Policy Act provides for judicial review of an agency’s scientific claims in environmental impact assessments, but this law is an exception. There is presently very little other law governing the agency use of science, which the Courts can enforce. For example, regulatory impact analyses are conducted under Executive Order and as such their scientific aspects are not subject to judicial review.
Absent enforceable law, the Courts traditionally show great deference to the agencies in matters of science that are relevant to the agency’s actions. The Courts do not want to be seen as adjudicating science.
1. Require a Science Review and Analysis (SRA) as part of justification of the agency action.
One solution is to establish enforceable legislative mandates requiring the sound use of science. Short of new law there is also the mechanism of a new Executive Order, one that is focused directly on policy related science.
In either case the mandate should be that there is full consideration and discussion of all outstanding uncertainties and controversies in the science in question. Moreover, this science must be clearly spelled out, perhaps via a systematic literature review.
In short we need a new formal analysis to accompany major, science based agency actions. Let us call this document the Science Review and Analysis or SRA. The SRA should be separate from the present Technical Documentation. It should also be subject to public notice and comment.
Ideally it will also be subject to judicial review, the way that Environmental Impact Analyses presently are under NEPA.
2. Require approval by a Science Review Panel (SRP)
Another partial solution is establishing new administrative procedures, such as requiring scientific review outside of the agency. Here the question is how such reviews would be administered. The basic idea is to assemble a review panel composed of experts on the science in question. Let us call this group the Science Review Panel or SRP.
This Science Review Panel should be run by an office that is independent of the office developing the science based agency action in question. It might even be run by another agency.
For either the Science Review and Analysis or the Science Review Panel it will be necessary to define those conditions that trigger their use. This threshold should involve both the potential impact of the action in question as well as the extent to which it is science based. The extent to which the science in question is controversial might also be a trigger for review.
It will also be useful to have OMB oversight and guidance, either via the present Office of Information and Regulatory Affairs or perhaps a new, science based Office.
The basic problem is that an agency may select or interpret specific scientific findings in a way that supports their action, while ignoring contrary science. The Science Review and Analysis procedure, and the Science Review Panel, are potential control mechanisms to address this problem of selective science.
The goal is for the Federal Government to use sound science in its decision making.