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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De Omnibus Dubitandum - Lux Veritas
Monday, November 23, 2020
EPA Transparency and the Deep State
By Duggan Flanakin
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