Environmental Protection, in Name Only

A proposal to create a senior scientist position at the U.S. Environmental Protection Agency is winning support from Congress. In June, a National Academy of Sciences panel recommended creating the position to bolster EPA's use of science, and at a House subcommittee hearing this summer, U.S. Rep. Vernon Ehlers (R-Mich.) announced that he was preparing legislation to create the deputy-level (agency head) science position. "Scientists need more clout," he said. But EPA needs more than Ehlers' remedies, which are like trying to stop a charging rhino with a pea shooter. In fact, a similar strategem failed miserably earlier in the tenure of EPA chief Carol Browner. What has never been addressed is the fundamental problem that adherence to scientific principles in the formulation of policy has long been alien to EPA's "corporate culture." An expert panel commissioned by then-EPA administrator William Reilly reported in 1992 that: * "The science advice function--that is, the process of ensuring that policy decisions are informed by a clear understanding of the relevant science--is not well defined or coherently organized within EPA." * "In many cases, appropriate science advice and information are not considered early or often enough in the decision making process." * While "EPA should be a source of unbiased scientific information, EPA has not always ensured that contrasting, reputable scientific views are well-explored and well-documented." And most damning of all, that * "EPA science is perceived by many people, both inside and outside the Agency, to be adjusted to fit policy. Such 'adjustments' could be made consciously or unconsciously by the scientist or the decision-maker." EPA and Science In an effort to elevate EPA's scientific profile, in 1989 the agency had brought on board former National Institutes of Health deputy director William Raub as the senior science advisor. Raub was known to be a smart, savvy, and collegial scientific administrator. Nonetheless, the EPA staff proceeded to make his life miserable. From the beginning, they ignored him when they could. When they couldn't, they sent him drafts of important documents too late for a meaningful review--often just days before a court-ordered deadline for an agency action. Instead of disciplining those responsible, EPA administrator Browner excluded Raub from her inner circle and finally replaced him in 1995 with a less- threatening lower-level EPA staffer. The tradition continues. Under mounting pressure from environmental groups to ignore the recommendation of the agency's own scientists, Browner last December scrapped a science-based standard for chloroform in drinking water. In 1998, EPA had proposed raising the Maximum Contaminant Level Goal for chloroform in drinking water from zero to 300 parts per billion. This recommendation had resulted from a thorough review by EPA scientists of toxicological data on human exposure to chloroform going back 20 years, and took into account the principle contained in the agency's draft cancer guidelines that there are thresholds below which toxins are essentially harmless. But the recommendation was to become the victim of political sabotage, and the agency instead retained a "zero tolerance" rule. In April of this year, however, a federal court rejected EPA's proposed standard, saying that the proposal was contradicted by the agency's own review of the "best available science." The courts often have had to restrain or educate EPA officials. In May 1999, for example, a federal court ruled that EPA's draconian new air quality standards were arbitrary and capricious and had to be revised. In May of this year the U.S. Supreme Court agreed to rule on EPA's deliberately disregarding the cost of its regulations as required by the Clean Air Act. As argued in an amicus brief filed July 21 by a public policy research institution and 40 prominent economists, the EPA should "consider explicitly the full consequences" of regulatory decisions, including costs, benefits, and any other pertinent facts. Superfund, the program directed at clean-up of toxic wastes, is a continuing disaster. After he left EPA, agency chief William Reilly admitted as much, saying that unscientific assumptions about risk "have driven clean-up costs to stratospheric levels and, together with liabilities associated with Superfund sites, have resulted in inner-city sites suitable for redevelopment remaining derelict and unproductive." The result has been "to impose a drag on urban redevelopment in the inner city, and to push new industry to locate in pristine, outlying sites." EPA and Biotechnology Finally, the EPA has attacked biotechnology on several fronts. Consistently adopting unscientific approaches, agency oversight focuses on the most precise and predictable techniques of biotechnology while ignoring genuinely hazardous products. These policies have been a drag on innovation. A regulation under the Toxic Substances Control Act focused only on the most precise techniques of the new biotechnology, for example, has halted most research into gene-spliced microorganisms that might be used to clean up oil spills and toxic wastes. And the agency is expected any day to issue a final regulation that requires the testing as pesticides of gene-spliced crop and garden plants such as corn, cotton, wheat, and marigolds that have been modified for enhanced pest or disease resistance. The policy fails to recognize that there is a difference between spraying synthetic, toxic chemicals and genetic approaches to enhancing plants' natural pest and disease resistance. EPA's policy is so potentially damaging and outside scientific norms that it has galvanized the scientific community: Eleven major scientific societies representing more than 80,000 biologists and food professionals published a report warning that the EPA policy would discourage the development of new pest-resistant crops and prolong and increase the use of synthetic chemical pesticides; increase the regulatory burden for developers of pest-resistant crops; limit the use of biotechnology to larger developers who can pay the inflated regulatory costs; and handicap the United States in competition for international markets. "Science at EPA," a voluminous book published last year by Resources for the Future, a Washington, D.C.-based think tank, carefully dissects eight major regulatory programs of the past two decades. It makes the case that the science behind the policy often gets distorted or ignored: "EPA for a variety of reasons is unwilling, unable, and unequipped to address and acknowledge the uncertainties in the underlying science." Why this sellout of citizens' interests? It is an example of the "bootleggers and Baptists" parable of regulation, first described by economist Bruce Yandle. In the South, Sunday closing laws make it illegal to sell alcohol on Sunday. These laws are maintained by an inadvertent coalition of bootleggers and Baptists. The Baptists (and other religious denominations) provide the public outcry against liquor on Sunday, while the bootleggers (who actually sell liquor illegally on Sunday at inflated prices) quietly persuade legislatures and town councils to maintain the closing laws that make their exorbitant profits possible. Environmental regulation is similar. The "Baptists" are the coalition of government regulators and radical environmental groups that promote unnecessary regulation, allegedly on grounds of safety concerns; the "bootleggers" are the big agribusiness companies that profit when their competition is stifled by excessive regulation. The environmental groups have long been closely allied with EPA, particularly during Carol Browner's tenure, and have been the recipients of generous grants from the agency. Some of the big agribusiness companies have benefited from EPA's excesses that can create market entry barriers to smaller competitors. This arrangement reeks of conflicts of interest. Many of EPA's regulatory programs are unscientific and illogical and afford little or no protection to human health or the environment. They have unacceptably huge costs and divert resources from other legitimate public and private sector endeavors. They breed well-deserved cynicism about government's motives. Often, the only environment that benefits is that of the bureaucrats themselves. Fixing EPA will require much more sweeping and fundamental changes than are currently being discussed. These could range from the creation of an ombudsman panel with the power to impose sanctions on EPA officials who collaborate on unscientific policies to dismantling EPA and redistributing its few essential functions to less scientifically challenged agencies. Henry Miller, a fellow at the Hoover Institution and an adjunct scholar at the Competitive Enterprise Institute, is the author of To America's Health: A Proposal to Reform the FDA, Stanford, Calif., Hoover Institute Press, 2000. From 1979-94, he was an official at the Food and Drug Administration.

Environmental Protection, in Name Only

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Henry Miller

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September 2000

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