More challenges to EPA's objectivity in its GHG endangerment findings.

In 2011, the Environmental Protection Agency began classifying greenhouse gases as pollutants and regulating their emissions. That meant that normal economic activities—tilling a small farm, running  a local store—that produced normal amounts of the naturally occurring vapor became potentially subject to EPA standards and, for those that exceeded the limits, crushing fines of up to $37,500 per day.

The EPA’s authority to regulate emissions, though, rests on shaky legal and environmental grounds. A small nonprofit of indomitable determination, the Institute for Trade, Standards, and Sustainable Development (ITSSD) has set itself the task of finding out whether the EPA has been telling the truth. NAS, as an academic organization that seeks to promote rigorous science and open debate, and as an interested observer of the way the EPA’s findings become the basis for college campus sustainability initiatives, has a stake in promoting accountability and transparency. EPA pronouncements find their way into campus offices of sustainability, greenhouse gas reduction plans, and sustainability tracking sheets.  If ITSSD’s investigations discredit the EPA’s pronouncements, colleges and university should guard the integrity of their environmental commitments and verify the EPA’s findings before acting on them.

Redefinitions

But first, the facts. The EPA’s legal authority to regulate air quality stems from the 1970 Clean Air Act, which authorized the agency to limit the emission of pollutants—“pollutants” at the time being understood as traditional industrial byproducts, such as SOx or ozone. In order to wedge greenhouse gases (GHGs) under the umbrella of “pollutants,” the EPA had to expand the term to include any environmentally dangerous emission. A single document, the Greenhouse Gas Endangerment Finding, did the trick. It surveyed scientific research and concluded that GHGs were dangerous, were pollutants, and hence were within the EPA’s regulatory purview.

The Supreme Court recently put a sternly worded end to this “unheralded” arrogation of power, calling the EPA’s retroactive classification of GHG and usurpation of congressional authority “patently unreasonable—not to say outrageous.” But regardless of the legal argument against the EPA’s regulation of GHGs, activists say the environmental question still remains. Would society be better off if the EPA were preventing GHGs from permeating our atmosphere? After all, the agency conducted a thorough review of the scientific literature on the topic and concluded that GHGs were dangerous to human health and to the wellbeing of the planet. If the planet is warming and GHGs are the cause, it’s only responsible to limit their emission and protect the earth’s temperature from dangerous spikes that threaten biodiversity, human society, and the topography. So runs the standard environmental line.

But there is increasing concern that GHGs are not quite so harmful to the planet as the EPA might have us think, and that the agency may have rigged its data and hidden the evidence. EPA Administrator Gina McCarthy has acknowledged in a speech before the National Academy of Sciences that her job requires shielding the data “from those not qualified to analyze it.” Partly in response, Congress is considering a bill, the Secret Science Reform Act, that would further elucidate transparency standards that the EPA must meet, and would forbid the agency from practicing any “secret science” that hides important details from the public.

Here is where ITSSD’s work comes in. Headed by the international trade lawyer Lawrence Kogan, ITSSD has set about the task of finding out exactly how the EPA conducted its 2011 Greenhouse Gas Endangerment Finding.  The organization has just launched its “International Regulatory Transparency” initiative, a substantial part of which involves investigating the peer review process used by the EPA in the Finding. ITSSD has uncovered evidence that indicates the EPA may have compromised the process by using reviewers with ties to the research being reviewed, financial ties to the EPA itself, and other types of conflicted interest. The EPA has also failed to publish on its website various transparency documents that are standard operating procedure among federal agencies.

Peer Review

It turns out that the EPA is required by law to abide by meticulous peer review and transparency regulations, to substantiate all regulations (including those on emissions) with scientific evidence, and to make all such scientific evidence available to the public and open for public comment. The federal Information Quality Act mandates these transparency standards, which the White House Office of Management and Budget (OMB) further elucidates in its Information Quality Act Guidelines:

Agencies shall treat information quality as integral to every step of an agency’s development of information, including creation, collection, maintenance, and dissemination. This process shall enable the agency to substantiate the quality of the information it has disseminated through documentation or other means appropriate to the information.

To find out exactly what the EPA has—or has not—been doing, ITSSD has detailed the precise procedures that the OMB requires the EPA to follow, and checked to see whether the EPA complied. The peer review process, ITSSD found, is supposed to be rigorous. For research classified as  “highly influential scientific assessments” (HISAs) and “influential scientific information (ISI)—the two categories of data that carry the most weight in EPA analyses, and the types of data the EPA relied upon in its GHG Endangerment Finding—the EPA is required to double check the findings through peer review by expert, but disinterested, third parties. Per the governing rules specified in the Office of Management and Budget’s “Peer Review Bulletin,” the labyrinthine review process includes

• Selecting peer reviewers on the basis of “expertise, experience and skills,” sometimes including specialists from multiple disciplines, in order to ensure a “sufficiently broad and diverse” team of reviewers.
• Ensuring that peer reviewers who are federal employees have no conflicts of interest between the federal agency that employs them and the EPA hiring them for the peer review, financial ties to stakeholders affected by the proposed regulations, financial ties to the EPA itself,  or any ties to the researchers whose work is under review.
• Certifying that the peer reviewers have not conducted or participated in the research under review, or work for the agency that conducted the research.
• Avoiding repeated use of the same reviewers for multiple assessments “unless his or her participation is essential and cannot be obtained elsewhere.”

The team of reviewers, once selected, is then supposed to follow an equally rigorous process of verifying the research. The EPA must provide and the reviewers must familiarize themselves with “sufficient information–including background information about key studies or models” before conducting the review. During the review process, the EPA is to publish on its website the scientific research in question, so that members of the public may comment on it and stakeholders affected by the proposed regulations may register any concerns. At the end, the reviewers are to write a report that details their review process and their conclusions, sign their names, and list their affiliations and credentials. The EPA must then respond to their review with a short rejoinder expressing agreement or disagreement with the result of the review report, outlining plans to act on the results, and explaining why these actions are the appropriate responses to the report. This report (with both the reviewers’ and the EPA’s comments) are to be available to the public on the EPA’s website.

But, as Kogan notes in a letter to the EPA, “Unfortunately, EPA has failed to publicly disclose how it substantiated its compliance with any of these IQA peer review objectivity, transparency and records requirements.” The documents required to be published on the EPA website have gone missing—or were never there to begin with. There are unexplained instances of the EPA repeatedly using the same peer reviewers, contrary to OMB guidelines. And there appear to be multiple instances of the EPA relying on reviewers who worked for the research agencies that generated the reports under review.

FOIA

To confirm its suspicions, ITSSD filed in March a request under the Freedom of Information Act asking the EPA for documents that pertained to its peer review process in the GHG Endangerment Finding. The EPA stonewalled the request, asking for various supplementary explanations and documents and ultimately rejecting the request. The agency pled “confusion” over which documents ITSSD sought. Undeterred, last week ITSSD filed a second request, this one 145 pages long, complete with annotations, appendices, and other detailed directions, leaving the EPA no room for misunderstanding.

To ensure it gets the full story, ITSSD is requesting documents dated January 1, 2005 to December 31, 2011 that relate to the Greenhouse Gas Endangerment Finding that fall into one of four categories:

1. EPA-developed and reviewed documents “highly-influential scientific assessments” (HISAs) behind the EPA regulations.

2. Third-parties’ peer review of third-party-developed HISAs which the EPA “embraced, adopted and disseminated as its own” in support of the finding.

3. An interagency panel’s peer review of the EPA-developed Technical Summary Document, which contained a summary and synthesis of the 28 HISAs designated as core reference documents. (ITSSD believes the EPA may have never compiled this required document.)

4. The administrative mechanisms meant to ensure that stakeholders could get information about and could ask for a reconsideration of scientific information that the EPA and other third parties had used in developing regulations.

The aim is to determine whether the EPA complied with the provisions of the Information Quality Act. If it did not, ITSSD may have grounds to bring a lawsuit against the EPA.

For better or for worse, we live in an age of scientific supremacy, when “scientific facts” serve as trump cards that override most other considerations, including other kinds of “facts.” In principle, this commitment to science entails a commitment to reason and to the idea of objective truth. But practice doesn’t always follow principle. People can be tempted to invoke the authority of science without abiding by the exacting standards of evidence, argument, and openness to alternative hypotheses on which that authority rests. Fraud is distressingly common, and more common still are shortcuts that seem to the enthusiasts to be just harmless ways of getting around nuisance impediments, but which really vitiate the whole inquiry. Peer review, as a self-policing measure, forms the backbone of academic integrity by protecting against faulty, malicious, or simply careless research. Peer review, properly conducted, improves the likelihood that data get evaluated on their merits, rather than on conformity to consensus. And the process soothes the public conscience with confidence that public policy rests on the basis of objective evidence, not on the whim and wish of the regulator. NAS salutes ITSSD for its work to uphold the principle of peer review and the ideal of intellectual integrity.