Report Recommends Ways to Improve Regulatory Science

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Study for ACUS examines steps agencies should take when using scientific analysis.

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Science is a key tool in regulatory decision-making – but also a controversial one. Advocacy groups and media reports sometimes criticize agencies for allowing political considerations to cloud or override scientific decisions. Even President Obama has remarked that “scientific integrity has been undermined and scientific research politicized in an effort to advance predetermined ideological agendas.”

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In an effort to address these concerns, a recent independent study identified several positive practices agencies can use when they rely on regulatory science. The study sought to offer general recommendations that would help ameliorate contentions of agency politicization and provide “a bulwark against some of the risks of the politicization of science.”
The study’s author, University of Texas law professor Wendy Wagner, based her recommendations on an investigation on the use of science within the Environmental Protection Agency (EPA), the Fish and Wildlife Service (FWS), and the Nuclear Regulatory Commission (NRC).
According to Wagner, agencies need not use completely identical practices when incorporating science into regulatory decision-making. Even agencies considering the same scientific data operate under varying statutory directives, which correspondingly affect how the science should shape policy outcomes. Nonetheless, Wagner contended that most science-intensive agencies could adopt some shared “best practices” in their policy decisions, such as peer review and transparency in explaining their use of scientific evidence.
Wagner also recommended that some agencies adopt some of the various practices used by the EPA in implementing its National Ambient Air Quality Standards (NAAQS). Among other things, the EPA has developed rules for stopping debates when scientific issues have yet to be resolved, thus protecting against interminable review processes. The EPA also openly acknowledges staff authorship on published reports and allows staff to make statements of dissent in agency reports – steps that Wagner believes add credibility to agency scientific assertions.
Other agencies’ regulatory science practices could benefit from adoption across the federal government, according to Wagner. To “capitalize” on other agencies’ successes, Wagner suggested that the Office of Science and Technology Policy (OSTP), a National Academy of Science (NAS) committee, or a similar body should take responsibility for identifying and publicizing innovations in regulatory science. Such dissemination of agency successes would provide a “ready template” for less experienced agencies.
Wagner acknowledged that these steps might not be enough.  External constraints might still impede greater transparency and rigor in agency use of regulatory science. For example, statutory constraints such as unreasonably short congressional deadlines for issuing new regulations may have adverse consequences on the transparency of agency policy-making.  She also suggested that the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB), which reviews agencies’ draft regulations, impedes transparency when it invokes the deliberative process privilege during its review.
To remedy these kinds of congressional and executive constraints, Wagner recommended congressional action and an executive order “directing OMB to refrain from applying the deliberative process privilege to its review of…science-intensive rules.” At a minimum, she urged either OMB or the regulatory agency to make publicly available an account and explanation of the significant changes made by OMB during its review.
Wagner prepared her study for the Administrative Conference of the United States (ACUS), a government agency that issues recommendations designed to improve government administration and performance.  ACUS’s Committee on Regulation has drafted recommendations based on Wagner’s study, and the full Conference will consider these draft recommendations on June 14, 2013, at its 58th Plenary Session.