April 2015

Next week, the Senate Environment and Public Works Committee is scheduled to consider S.544 – better known as the Secret Science bill.

The legislation says that the EPA Administrator "shall not propose, finalize, or disseminate a covered action unless all scientific and technical information relied on to support such covered action is—(A) the best available science; (B) specifically identified; and (C) publicly available online in a manner that is sufficient for independent analysis and substantial reproduction of research results." The bill further requires disclosure of "all materials, data, and associated protocols necessary to understand, assess, and extend conclusions;(ii) computer codes and models involved in the creation and analysis of such information;(iii) recorded factual materials; and`(iv) detailed descriptions of how to access and use such information."

This seemingly innocuous text includes a number of procedural landmines that are intended to hamper EPA's ability to propose and finalize rules as well as give opponents of regulations additional legal tools to stop and/or delay implementation. For example – who decides what isthe "best available science," the EPA, or does this legislation allow industry to use the courts to say their science must be included?  What qualifies as "independent analysis"?  How do you substantially reproduce a longitudinal trial or a natural experiment trial?  If industry can find one study used by EPA that does not meet the above standard (even if there are several others that have the same finding and do meet the above standards) is the whole regulation stopped?

In enacted, this legislation would give industries opposed to regulations new procedural and legal tools to delay and weaken EPA regulations. Similar legislation has been passed by the House Science Committee along largely partisan lines. The ATS opposes this legislation.