By at 28 April, 2015, 11:16 am

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By Karen Kerrigan-

Over the last several months, SBE Council’s Center for Regulatory Solutions has helped to move reforms through the Congress that will fix the deeply flawed federal rulemaking process. Thankfully, we now have a functional Senate to further advance bills approved by the House. Today, that reform agenda on Capitol Hill is steadily advancing as the Senate Environment and Public Works Committee will vote on S. 544, the “Secret Science Reform Act of 2015,” sponsored by Sen. John Barrasso (R-WY). The House passed its version of this bill in March.

SBE Council/CRS Chief Economist Ray Keating testified in strong support of this important legislation before the House Science Committee last year. Ray described it as a “common-sense reform” that “all in Congress and in the Obama Administration should agree on.” Certainly the public agrees. As a CRS poll revealed last year: 72% of respondents, including Republicans, Democrats, and Independents, said that government regulations are “created in a closed, secretive process.”

As Ray explained in his testimony, S. 544’s main requirement is straightforward and easy to understand: EPA “shall not propose, finalize, or disseminate a covered action [e.g., rulemakings, guidance, regulatory impact analyses] unless all scientific and technical information relied on to support such covered action” is “the best available science,” “specifically identified,” and “publically available in a manner that is sufficient for independent analysis and substantial reproduction of research results.”

Supporting this bill should be a no-brainer for President Obama, who, to great fanfare, issued Executive Order 13563, “Improving Regulation and Regulatory Review,” in 2011. As 13563 states:

Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation. It must be based on the best available science. It must allow for public participation and an open exchange of ideas. It must promote predictability and reduce uncertainty.

Unfortunately, EPA has routinely ignored this order, and President Obama has done nothing to enforce it. If this bill were to become law, it would be a major victory for transparency at EPA—an agency long plagued by secretive deliberations in the form of “sue-and-settle” rulemakings and stubborn refusals to share the scientific data it uses with outside scientists and the regulated community.

Here are just two among many glaring examples of EPA hiding the ball on the use science to support regulations:

Ozone: In August 2013, the House Science, Space, and Technology Committee Chairman Lamar Smith issued a subpoena to the EPA for the release of the science used as the basis for costly air regulations. “Over the past two years,” according to the committee’s press release, “the Committee has repeatedly requested the data the agency uses to justify virtually every Clean Air Act regulation proposed and finalized by the Obama administration. This was the first congressional subpoena the Science Committee has issued in 21 years.”

Chairman Smith further noted: “The two data sets in question are used to justify major costly new air regulations. As one example, by its own estimates the EPA’s proposed limits on ozone will cost taxpayers $90 billion per year, making it the most costly regulation the federal government has ever issued. Some of the data in question is up to 30-years-old.”

Getting the underlying data in question is critical to ensuring that EPA’s upcoming ozone rulemaking—not to mention the entire suite of ambient air quality standards EPA will establish in the coming yearsis based on the most rigorous science, and that the public has an objective, accurate assessment of the costs and benefits of this rulemaking.  

Social Cost of Carbon: The Obama Administration’s secretive “Interagency Working Group” (IWG) has established a highly speculative cost estimate called the “social cost of carbon” (SCC) to measure the health and environmental benefits of reducing carbon emissions from federal rulemakings.

In a September 2013 letter, a coalition of business groups pointed out that the Administration’s SCC estimates “are the product of an opaque process, are fraught with uncertainties, and any pretensions to their supposed accuracy (and therefore usefulness in policy-making) are unsupportable.” 

To date, the Administration has not been forthcoming about who specifically participated in the process and whether the IWG adhered to federal guidelines in crafting the SCC estimateThe Administration’s stonewalling prompted two members of Congress to seek a Government Accountability Office investigation to uncover key information related to the IWG process

The SCC is being used to justify on cost-benefit grounds the Administration greenhouse gas regulatory regime, which will raise energy costs for small businesses and threaten the reliability of the electric grid. EPA’s greenhouse gas rulemakings will eventually cover the entire economy, covering a wide array of industries, including pulp and paper, cement, oil and gas, chemicals manufacturing, mining, and many more – which are dominated by small businesses.

We urge Senate EPW to pass this bill, and for the full Senate to follow the House. And it’s time for the Obama Administration to end its baseless opposition to this simple, yet highly effective, reform. Ray said it best in his testimony:

I can assure you that the members of the Small Business & Entrepreneurship Council embrace this reform, as it would take the scientific information EPA regulators use and send it into the public realm, where it can be properly debated and analyzed.  As EPA’s costly ozone rulemaking looms over our stagnant economy, it would be welcome indeed if EPA would be required to make public the all the data it intends to use.  What do they have to hide?  After all, wouldn’t EPA want to be absolutely certain that a potentially $90 billion rulemaking is worth it? I know small businesses and their workers certainly would. 

The Administration’s opposition to S. 544 because it would “unnecessarily burden regulators” is both inane and pathetic. The federal government works for the American people. The activity of government regulators and bureaucrats needs to be transparent and checked. Our system of government is not closed and dictatorial. Moreover, the fragility of the American economy demands due diligence by government regulators in their work.

Small business owners and their workers deserve the careful, common sense, open review that the Secret Science Reform Act provides.

Karen Kerrigan is president & CEO of the Small Business & Entrepreneurship Council (SBE Council). The Center for Regulatory Solutions is a project of SBE Council.

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