The chairman of the House Science, Space and Technology Committee created the Secret Science Reform Act back in 2014, but failed to get the bill signed into law. Even if it had made it through, President Barack Obama made it clear he would veto the legislation.
But the situation has decidedly changed since then. Now, with a Republican-dominated Congress and President-elect Donald Trump waiting in the wings, Smith has said he intends to revive the bill, which would prohibit the EPA from “proposing, finalizing, or disseminating regulations or assessments based on science that is not transparent or reproducible.”
That may not sound so bad, but in practice, Gina Warren, a University of Houston law professor, says, the bill could have serious implications for how the agency operates.
Since it was established by President Richard Nixon in 1970, the EPA has been allowed by statute to rely on the best judgment of agency officials to determine what reasonably needed to be done to protect the public welfare. “These have always been judgment calls and because of this, they've never been decisions made with 100 percent certainty," Warren says.
The Secret Science Reform Act proposes to rip away the veil of privacy on scientific research by opening up the research so that it will be subject to judicial review.
“Judicial review has always been a cornerstone of our checks and balances system, but the EPA and other agencies have always been given some latitude,” Warren says. “They've never been required to reproduce or prove their science because it has been assumed that the scientists are the experts on the subject. This law would have judges reviewing scientific work, and judges are not the experts. Taking that trust away seems like nothing more than a political war on science directly.”
The concept of certainty itself is difficult to define, because it's always about what we can reasonably be sure of, about what we can anticipate based on the highly educated guess of what we know going into it. We don't make laws based on absolute certainty, and the idea of doing that comes across as an attempt to create a law that has been designed specifically to prevent the EPA from doing anything at all, Warren contends.
There are other concerns about the bill. There's some data that it simply won't be possible to reproduce because of either the time required to collect the data or if the data is based on a one-time occurrence like a major oil spill, as the American Association for the Advancement for Science pointed out when the bill was first moving through Congress in 2015. The AAAS also noted that a lot of scientific data used includes sensitive materials such as medical records, things that really can't be posted online as is.
Despite all this, proponents of the bill have said that it will increase transparency at the EPA by forcing the agency to put its data out there on the Internet for all to see, as Slate has reported. This question of whether or not all scientific data should be online and easily accessible to the public, including email exchanges between scientists, has been a pet peeve of Smith's for a long while now. In recent years he's issued numerous subpoenas trying to force scientists and officials to hand over data and communications in his role as chairman of the House Science Committee.
Still, crafting legislation so that even EPA proposals have to be proved and verified before they can be proposed will be difficult at best and may prove impossible in a lot of instances, as the AAAS noted. Science is always evolving, and even though scientists base their proposals and the rest of their work on scientific data, they can't possibly know everything, Warren says.
Usually, this is not an issue. All agencies are given deference as long as their work stays within the guidelines of agency statutes. As long as any agency can prove that the officials are acting based on their best judgment, it's assumed that they are acting in the best interest of the public based on what they knew at the time.
"Just imagine what that is going to do to the EPA," Warren says.