Open Data

Increased disclosure? Or an obstacle for EPA?

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Should the government have to provide the data underlying a scientific report that it has used to support a regulation? Or would increasing the required burden of proof moot policymaking and expose participants' private data?

Environmental Protection Agency regulations have brought this issue from the abstract to the halls of Congress, where lawmakers and academics have debated the issue over the past several months.

Last week, Republican lawmakers, backed by some scientists, demanded that EPA make available to the public all of the data used to justify its regulations. Democrats, with their own scientific supporters in tow, argued that requiring the release of such data would undercut EPA's ability to use outside research to inform its work.

"The Secret Science Reform Act of 2014 is a result of more than two years of investigative work on the part of the Science, Space and Technology Committee," Lamar Smith (R-Texas), the panel's chairman, said at a Feb. 11 hearing. "This work was initiated when the Environmental Protection Agency failed to live up to its public commitment to make the data that supports its most costly air regulations available to the public."

The House Subcommittee on Environment heard from witnesses in the science and small business communities on the legislation -- introduced by subcommittee Chairman David Schweikert (R-Ariz.) -- which would require that the data EPA uses to create regulations be made publicly available.

John Graham, dean of the School of Public and Environmental Affairs at Indiana University and a former senior administrator at the Office of Management and Budget under President George W. Bush, told the panel that the bill would hold EPA more accountable.

"Publicly accessible data is increasingly the norm in all fields of science unless ... disclosure is illegal (e.g., due to confidentiality safeguards or confidential business information)," Graham told FCW in an email. "There is no reason that environmental research should be less public than other forms of science."

"The bill simply codifed what OMB already requires agencies to do under the Information Quality [Act of 2001]," he said. "It is a sensible bill. I don't think the sky will start falling at EPA if this bill passes. EPA will simply be more open than they have been in the past."

And that's the entire point, according to Smith.

"We learned that much of the data either no longer exists or was never in the agency's possession," he said. "Not only are EPA's claims not independently verifiable, the agency cannot provide evidence to justify them. As a result, the American people have no way of knowing the truth."

Opponents of Schweikert's proposal cast the issue not as one of scientific openness or EPA intransigence, but of privacy and fairness.

Democratic lawmakers say they are concerned that requiring EPA to reveal details of the research it uses would risk revealing personally identifiable information on research subjects.

More broadly, they argue that demanding data from agencies is hypocritical when businesses aren't forthcoming with information of their own -- and that the new standards could lead to a less-informed process.

"If implemented as written, this bill would actually prevent the EPA from using the best available science to inform its regulatory actions," said Rep. Suzanne Bonamici (D-Ore.). "The EPA relies on thousands of peer-reviewed articles as part of their scientific review and under this proposal, if for any reason all of the scientific and technical information associated with those articles was not publicly available, the EPA would have to proceed as if those studies did not exist."

Dr. Ellen Silbergeld, environmental health science professor at Johns Hopkins University, said that revealing data can result in the loss of anonymity.

"Those data have to absolutely be protected because if those data become available, people can pretty much identify who participates in the studies," Silbergeld said.

For example, Silbergeld said that data based on spatial statistics and location can be used to identify participating subjects. De-identifying studies would make the data trivial and inhibit re-analysis by other organizations.

Silbergeld also joined the chorus in criticizing the lack of a similar requirement for private sector research.

"I agree with the statement of many at this hearing that there is an important need to reduce the secrecy that confounds public access to the basis for some EPA decisions specifically," she said. "However, with respect to my experience, the major driver in secrecy in EPA rulemaking is the deference given to industry in terms of shielding its studies from public view."

The Center for Progressive Reform sent a letter to the subcommittee condemning Smith's bill as unnecessarily burdensome on the EPA -- ironically, a charge often leveled at the regulations that pour forth from the agency.

"This draconian requirement will significantly undermine the scientific integrity of EPA's regulation, rather than enhance it, by placing out of the agency's consideration relevant and material studies when EPA is unable to acquire the underlying information," the letter said. It also charged that organizations that learn of an adversarial report could decline to provide data in order to prevent publication.

Wendy Wagner, law professor at the University of Texas and one of the authors of CPR's letter, called the Schweiket bill "ambiguous."

"It's hard to tell what it will do but it certainly could be read to suggest that the EPA is not allowed to even consider a study in the course of the decision-making unless it has all the underlying data and makes that publicly available," she said.

While there is a paucity of neutral opinion on the subject, the Administrative Council of the United States released 11 recommendations in June 2013 called "Science in the Administrative Process." One of the recommendations called for increased scientific data disclosure.

"To the extent practicable and in compliance with applicable legal restrictions, privileges, protections, and authorities, agencies should seek to provide disclosure of data underlying scientific research, including both privately and federally funded research being considered by the agencies," the report said.

About the Author

Reid Davenport is a former FCW editorial fellow. Connect with him on Twitter: @ReidDavenport.


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