Some members of Congress apparently do not want agencies to regulate powerful agricultural and pharmaceutical interests in order to protect the public from dangerous risks. Yet, rather than say that — and be held accountable to the electorate for the consequences — they have developed what has become a standard, indeed almost boilerplate pretext to hide their endgame.
Specifically, they have drafted a provision snuck in as a rider to a farm bill that requires agencies to develop elaborate “high standards” for the use of science before they can regulate. Even more problematic than their obscurity is the fact that rather than deferring to the scientific community’s idea of what these high scientific standards should be, congressmen establish the rules of the game on their own. Given their politically-charged origins, it is thus not surprising that these congressionally developed rules are decidedly not in the public interest, nor are they consistent with the true “high standards” of science.
“Good science” sounds like a good thing, like motherhood and apple pie. But, those who spend their lives studying the tedious details of regulations and laws understand that there is plenty at stake in this type of provision. Most obvious is the fact that complying with the additional scientific procedures will slow the agencies’ work further still as they invest added effort into the new ambitious procedures and prepare for inevitable litigation challenges. Lawyers call these types of added mandatory provisions “attachment points,” because high stakes players can latch onto them and use them to bring a seemingly endless stream of legal challenges against the agency, slowing down its work to a snail’s pace.
Never mind that there is no significant evidence of a problem with the agencies’ use of science. Nor is there evidence that when it comes to science, agencies fare worse in understanding how to use it as compared to Congress. In fact, regulators are hired specifically for their scientific and regulatory expertise.
Even more nefarious is the fact that the way “good science” is defined in this provision can actually set the integrity of the agency’s work backwards rather than forwards. The provision, for example, demands that agencies use only research that has been subjected to “well-established scientific processes.” Yet such processes are likely to involve years of peer review and related oversight before a scientific finding can actually be used to support a regulatory policy.
The provision also requires the agency to weigh quantifiable information more heavily than observational or qualitative information. But a critical reader is left scratching her head at the basis for this unilateral legislative decree that quantitative data is more reliable and useful than observational and qualitative research. Even more concerning are the implications once this inflexible weighting rule is implemented in practice.
The rider can even be read to suggest that in cases when the agency doesn’t have empirical evidence, it simply cannot proceed with regulation at all. Specifically, the bill requires the agency to establish procedures to “make policy decisions only on the basis of the best reasonably obtainable scientific, technical, economic, and other evidence ...” If the legislative drafters mean that if there is no well-established research, then there can be no agency regulation, we can expect a lot of gaps in regulation to develop around serious, but understudied issues.
For example, there has been very little testing of the long-term hazards of chemicals, products in commerce, and a host of other substances and under this “good science” provision the problems would remain both under-studied and unregulated. Prioritizing public policy based on how many academics have studied the problems is a curious way to regulate. This centralized, almost soviet-styled prioritization of agency policies is presented as if it is simply applying a “high standard of science” on agency practice, rather than reordering the nature of the social policies that the agency can advance.
The good science as pretext maneuver has become a familiar tactic on Capitol Hill. More than a decade ago, several appropriation riders were passed that imposed scientific procedures and quality standards on agencies. To stop this good science scam, the public needs to remain watchful. When members of Congress begin legislating “high standards” for science, our collective public antennae should go up, not down. Indeed, Congress’ legislation of science would be worrisome even if it did not come with this Pandora’s box of problems. But particularly with respect to good science provisions in the farm bill, the case for excising “good science” from complex legislation is an easy one.
Wendy Wagner is a professor of law and the University of Texas at Austin and a member scholar of the Center for Progressive Reform.