[Senate Report 114-69]
[From the U.S. Government Publishing Office]
Calendar No. 124
114th Congress } { Report
SENATE
1st Session } { 114-69
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SECRET SCIENCE REFORM ACT OF 2015
_______
June 22, 2015.--Ordered to be printed
_______
Mr. Inhofe, from the Committee on Environment and Public Works,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany S. 544]
[Including cost estimate of the Congressional Budget Office]
The Committee on Environment and Public Works, to which was
referred a bill (S. 544) to prohibit the Environmental
Protection Agency from proposing, finalizing, or disseminating
regulations or assessments based upon science that is not
transparent or reproducible, having considered the same,
reports favorably thereon with an amendment and recommends that
the bill, as amended, do pass.
General Statement and Background
Current law does not guarantee that Environmental
Protection Agency (EPA) regulatory actions are based on the
best available science, nor does it ensure the science used is
transparent or independently verifiable. While numerous
Administration policies and guidance recommend such safeguards,
they fall short of meeting the open access and integrity
standards for sound science.
Aside from EPA-generated science, the Agency primarily
relies on studies that have been conducted outside the Agency
and peer reviewed. However, in many cases peer reviewers do not
have access to underlying data and therefore cannot verify the
findings of the studies under review. In 2014, a survey of
experts in risk analysis and toxicology released by George
Mason University found that only 16% of those surveyed said
peer reviewers often or always have access to underlying data
from critical studies. Moreover, peer review alone is not a
sufficient check on science. In 2002, the National Research
Council explained ``peer review alone does not detect fraud,
validate factual findings . . . or substitute for the judgments
of the scientific community as a whole.'' Further, in 2014 The
Economist reported ``[m]odern scientists are doing too much
trusting and not enough verifying--to the detriment of the
whole of science, and of humanity. Too many of the findings
that fill the academic ether are the result of shoddy
experiments or poor analysis.''\1\
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\1\http://www.economist.com/news/leaders/21588069-scientific-
research-has-changed-world-now-it-needs-change-itself-how-science-goes-
wrong
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EPA also has a record of relying on science conducted
outside the Agency that is not available to the public--or to
the EPA--and therefore cannot be replicated or verified by
independent researchers. For example, virtually all Clean Air
Act regulations under the Obama Administration have been
justified by data sets collected by two non-governmental
institutions over 30 years ago, which have been withheld from
the public and cannot be replicated. In 2014, Congress learned
this data either no longer exists, is of such poor quality that
modeling results cannot be replicated, or has not been coded to
facilitate independent analysis. However, EPA continues to rely
on this data to support major regulations.
Open access to data is consistent with requirements of
major scientific journals, as well as the academic and
scientific community. For example, Nature Partner Journal (NPG)
states: ``NPG has consistently been an early mover in embracing
[open access] as a natural consequence of new technologies . .
. As of 2015, we publish 74 journals with an open access
option, and 44 percent of the research articles we published in
2014 were open access.''\2\ The following journals are fully
open access: Nature Communications, Nature Partner Journals,
Scientific Reports, Scientific Data, and 20 society and
academic journals.\3\ Dr. John Graham, Dean, Indiana
University, and former Administrator of the Office for
Information and Regulatory Affairs stated in testimony before
the House Committee on Science, Space and Technology in
February 2014: ``Once environmental scientists have published
their work in the peer-reviewed scientific community, it is
already common practice for them to share their data with other
scientists who have an interest in their research.'' In 2009,
the Bipartisan Policy Center's Science for Policy Project
recommended: ``Studies used in the formulation of regulation
should be subject to data access requirements equivalent under
the Data Access Act (Shelby Amendment) and its implementing
circular regardless of who funded the study.'' In June 2013,
the Administrative Conference of the U.S., an independent
federal agency that provides expert advice and recommendations
for improvement of federal agency procedures encouraged ``the
disclosure of data, including both privately-funded and
federally-funded research that an agency is considering.''
Accordingly, it is time for the EPA to use science that follows
this practice.
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\2\http://www.nature.com/authors/open_access/about_open_access.html
\3\http://www.nature.com/authors/open_access/about_open_access.html
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Ensuring EPA action is based on technical and scientific
information that is publicly available provides the much needed
transparency and opportunity for verification to ensure public
confidence in EPA action. Above all, independent verification
and transparency improves the credibility of the science, which
leads to better decision making at EPA and greater public
health protection. As new datasets are made public, greater
collaboration among public health experts could lead to more
rapid advances in science that could save lives and lead to
breakthroughs in new areas. Thus, in the spirit of advancing
science and creating well-informed public policy at the EPA, S.
544 is necessary to achieve these goals.
Objectives of the Legislation
The purpose of S. 544, the ``Secret Science Reform Act of
2015,'' is to prohibit the Environmental Protection Agency
Administrator from finalizing, proposing, or disseminating a
covered action unless all scientific and technical information
relied on to support the covered action is the best available
science, specifically identified, and publicly available in a
manner that is sufficient for independent analysis and
substantial reproduction of research results.
Section-by-Section Analysis
Section 1. Short Title
This Act may be cited as the ``Secret Science Reform Act of
2015.''
Sec. 2. Data Transparency
Section 2 amends section 6(b) of the Environmental
Research, Development, and Demonstration Authorization Act of
1978 by striking and replacing the existing text.
Paragraph (1) prohibits the Environmental Protection Agency
(EPA) from taking a covered action unless the scientific and
technical information relied on to support the covered action
is the best available science, is specifically identified, and
is publicly available online in a manner that is sufficient for
independent analysis and substantial reproduction.
The Committee does not intend for EPA to duplicate public
access to scientific data that is already provided by others.
For example, ClinicalTrials.gov currently lists 189,951
studies. Similarly, the National Center for Biotechnology
Information, a division of the National Library of Medicine at
the National Institutes of Health (NIH) hosts 40 online
literature and molecular biology databases. Most scientific
journals are available online directly or through one of these
databases. Moreover, if scientific or technical information is
federally funded, the Data Access Act, Pub. L. No. 105-277,
tit. III, 112 Stat. 2681, 2681-495 (1998), and subsequent
guidance in the Office of Management and Budget's Circular A-
110, require such information to be ``made available to the
public through the procedures established under [the Freedom of
Information Act]'' if it is ``used by the federal government in
developing an agency action.''\4\ Circular A-110 is clear that
data access provisions applied even to mixed private/public
funded research, stating ``the amended Circular shall apply to
all Federally-funded research, regardless of the level of
funding or whether the award recipient is also using non-
Federal funds.''\5\ Experts have suggested that at least half
the studies used by EPA are based on at least minimal federal
funding, which would trigger the data access requirements under
Circular A-110.
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\4\OMB Circular A-110, ``Uniform Administrative Requirements for
Grants and Agreements With Institutions of Higher Education, Hospitals,
and Other Non-Profit Organizations,'' 2 C.F.R. 215.36(d).
\5\64 Fed. Reg. 5,684, 5,684 (Feb. 4, 1999).
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The Committee also does not intend for EPA to duplicate
standards establishing sufficiency for independent analysis and
substantial reproduction. As noted by Dr. Francis Collins and
Dr. Lawrence Tabak in a comment on NIH plans to enhance
reproducibility, published in Nature in January 2014, human
clinical trials do not present a reproducibility problem due to
stringent regulation of such trials.\6\ Accordingly, the
Committee deems human clinical trials that meet current
regulations applicable to such trials to meet the standards set
forth in paragraph (1). Reproducibility has been an issue for
preclinical research. To address this issue, NIH has adopted
``Principles and Guidelines for Reporting Preclinical
Research.''\7\ Included in those guidelines is a requirement
that ``all datasets on which the conclusions of the paper rely
must be made available upon request (where ethically
appropriate) during consideration of the manuscript (by editors
and reviewers) and upon reasonable request immediately upon
publication.'' The Committee deems any information and
technical information published in a journal or other
publication under conditions that meet NIH's Principles and
Guidelines to be information that is sufficient for independent
analysis and substantial reproduction.
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\6\Collins, F. and Labak, L, NIH Plans to enhance reproducibility,
Nature, Vol. 505, p. 612, Jan. 30, 2014, available at http://
www.nature.com/news/policy-nih-plans-to-enhance-reproducibility-1.14586
\7\http://www.nih.gov/about/reporting-preclinical-research.htm
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S. 544 would not require EPA to collect, host, reanalyze,
reproduce, disseminate, or otherwise make publicly available
any scientific or technical information as defined in the bill.
Rather, S. 544 would require EPA to base covered actions on
scientific and technical information that is otherwise publicly
available in a manner sufficient for independent analysis and
substantial reproduction of research results. This provision
would not significantly diminish the studies used by EPA for
several reasons, including: electronic data has become a
standard for scientific research in the digital age, many
scientific journals publishing such studies require full
transparency to verify research results, federal agencies
including the EPA are already required to provide public access
to data based on any federal funding, and certain federal
agencies host existing data repositories that would meet the
publicly available provision of this bill. Accordingly, this
provision dramatically shifts any burden away from EPA.
Insofar as the EPA seeks to rely on information that is not
deemed to be sufficient for independent analysis and
substantial reproduction as described above, the Committee
expects agency officials to ask the researcher to make the
scientific or technical information publicly available in a
manner sufficient for independent analysis and substantial
reproduction of research results. This type of communication
and interaction between EPA and researchers is a common
practice at the Agency. For instance, during the recent
development of the National Ambient Air Quality Standards for
Ozone, the online rulemaking docket reveals examples of EPA
officials engaging with researchers asking for clarification or
access to data.\8\ If the researcher informs EPA the scientific
or technical information is not public and EPA wants to rely on
their study for a covered action then EPA, similar to the
policies of the National Science Foundation (NSF), NIH, and the
National Aeronautics and Space Administration (NASA), could
encourage the researcher to share the information through
existing repositories.\9\
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\8\http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OAR-2008-
0699-0399;
http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OAR-2008-0699-
0407;
http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OAR-2008-0699-
0110.
\9\http://www.crs.gov/pages/
Reports.aspx?PRODCODE=R42983#_Toc350167909
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Paragraph (2) clarifies that nothing in the section
requires EPA to disseminate scientific and technical
information, nor does the section supersede any
nondiscretionary statutory requirements.
The Committee does not expect EPA to itself collect or
disseminate any information. As discussed above, there are
ample venues for such dissemination. Nothing in this bill
amends existing laws that protect confidential business
information, trade secrets and other intellectual property from
public disclosure. In addition, the Committee expects EPA to
protect personnel and confidential information, as required by
law. The National Academy of Sciences has confirmed that
transparency and reproducibility in science is possible without
any risks to confidentiality or privacy. In 2005, the Panel on
Data Access for Research Purposes of the National Research
Council stated in its report on Expanding Access to Research
Data: Reconciling Risks and Opportunities: ``Nothing in the
past suggest that increasing access to research data without
damage to privacy and confidentiality rights is beyond
scientific reach.''\10\ The House of Representatives Committee
on Science, Space and Technology received a letter of support
for a similar House bill in the 113th Congress from more than
80 scientists, experts, and doctors, including two former EPA
officials and two former chairs of EPA science committees,
which stated that ``complying with [the Secret Science Reform
Act] can be accomplished without imposing unnecessary burdens,
discouraging research, or raising confidentiality concerns.
Across different disciplines, numerous statistical and
technical approaches exist to protect any sensitive
information.''\11\
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\10\http://www.nap.edu/catalog/11434/expanding-access-to-research-
data-reconciling-risks-and-opportunities
\11\http://science.house.gov/sites/republicans.science.house.gov/
files/documents/Letter%20of%20Support%20for%20HR%204012%20-
%2087%20Experts.pdf
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Paragraph (3) defines the terms covered actions and
scientific and technical information.
Paragraph (4) requires EPA to carry out this subsection in
a manner that does not exceed $1 million a year. Based on the
fact that EPA itself will not be collecting or disseminating
information, but instead will rely on other entities and
repositories, the Committee believes that EPA can easily carry
out its duties under this Act for $1 million a year.
Sec. 3. Preventing Censorship of Publicly Funded Science
Section 3 states that the Act does not limit the ability of
federal employees or agencies to use in official documents or
presentations terms common in the peer-reviewed scientific
literature, including terms relevant to climate change,
pollution, toxic substance exposure or other risks.
Legislative History
On February 24, 2015, S. 544, ``The Secret Science Reform
Act of 2015'' was introduced by Senator Barrasso along with
seven cosponsors in the Senate. On April 28, 2015, the Senate
Committee on Environment and Public Works met to consider S.
544. An amendment was offered by Senators Boxer and Markey and
passed by a unanimous vote of 20 Ayes. The bill, as amended,
was approved on April 28, 2015, by a vote of 11 Ayes and 9
Nays.
In the 113th Congress, S. 2613, ``The Secret Science Reform
Act of 2014'' was introduced by Senator Barrasso along with
seven cosponsors in the Senate and referred to the Senate
Committee on Environment and Public Works on July 16, 2014.
On March 18, 2015, H.R. 1030, ``The Secret Science Reform
Act of 2015'' passed the House of Representatives by a vote of
241 Ayes and 175 Nays. In the 113th Congress, H.R. 4012, ``The
Secret Science Reform Act of 2014'' passed the House of
Representatives by a vote of 237 Ayes and 190 Nays, on November
19, 2014.
Hearings
The Senate Committee on Environment and Public Works did
not hold any hearings on S. 544, ``The Secret Science Reform
Act of 2015.'' However, the House of Representatives held
hearings in the 113th Congress regarding a House companion
bill, H.R. 4012, ``The Secret Science Reform Act of 2014.''\12\
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\12\On February 11, 2014, the House of Representatives, Committee
on Science, Space and Technology, Subcommittee on Environment, held a
hearing on ``The Secret Science Reform Act'' and Ensuring Open Science
at EPA. On November 14, 2013, the House of Representatives, Committee
on Science, Space and Technology held a hearing Strengthening
Transparency and Accountability within the Environmental Protection
Agency.
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Rollcall Votes
The Committee on Environment and Public Works met to
consider S. 544 on April 28, 2015. An amendment was adopted by
roll call vote. Two amendments were rejected by roll call vote.
The bill was ordered favorably reported, as amended, by roll
call vote.
Amendment approved
1. Amendment that would prevent censorship of terms used in
peer-reviewed scientific literature from official federal
documents or presentations (offered by Senators Boxer and
Markey) (adopted by voice vote).
Amendments rejected
A total of two additional amendments to the bill were
offered and not approved by the Committee, as follows:
1. Amendment that would strike requirement for scientific
and technical information to be made publicly available and
replace with requirement that the funding sources of scientific
and technical information be made publicly available (offered
by Senators Markey and Boxer) (rejected by a roll call vote of
9 yeas, 11 nays).
2. Amendment that would allow use of peer-reviewed science,
even if based on data that is prohibited from public disclosure
(offered by Senators Markey and Boxer) (rejected by a roll call
vote of 9 yeas, 11 nays).
Final Committee vote to report
S. 544, as amended by the Boxer/Markey amendment, was
approved and ordered to be reported to the full Senate. The
roll call vote to report the bill was 11 to 9 in favor
(Senators Inhofe, Vitter, Barrasso, Capito, Crapo, Boozman,
Sessions, Wicker, Fischer, Rounds, and Sullivan voted yea, and
Senators Boxer, Carper, Cardin, Sanders, Whitehouse, Merkley,
Gillibrand, Booker, and Markey voted nay).
Regulatory Impact Statement
In compliance with section 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee on Environment and
Public Works finds that S. 544 does not create any additional
regulatory burdens, nor will it cause any adverse impact on the
personal privacy of individuals.
Mandates Assessment
In compliance with Section 423 of the Congressional Budget
and Impoundment Control Act (as amended by Section 101(a)(2) of
the Unfunded Mandate Reform Act, P.L. 10404), the Committee on
Environment and Public Works has received a letter from the
Congressional Budget Office included herein.
Cost of Legislation
June 5, 2015.
Hon. Jim Inhofe,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 544, the Secret
Science Reform Act of 2015.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman.
Sincerely,
Keith Hall.
Enclosure.
S. 544--Secret Science Reform Act of 2015
Summary: S. 544 would amend the Environmental Research,
Development, and Demonstration Authorization Act of 1978 to
prohibit the Environmental Protection Agency (EPA) from
proposing, finalizing, or disseminating a ``covered action''
unless all scientific and technical information used to support
that action is publicly available online in a manner that is
sufficient for independent analysis and substantial
reproduction of research results. Covered actions would include
assessments of risks, exposure, or hazards; documents
specifying criteria, guidance, standards, or limitations; and
regulations and regulatory impact statements.
Although S. 544 would not require EPA to disseminate any
scientific or technical information that it relies on to
support covered actions, the bill would not prohibit EPA from
doing so. Based on information from EPA, CBO expects that EPA
would spend $250 million annually over the next few years to
ensure the transparency of information and data supporting some
covered actions, assuming the availability of appropriated
funds.
Enacting S. 544 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply. S.
544 contains no intergovernmental or private-sector mandates as
defined in the Unfunded Mandates Reform Act (UMRA) and would
not affect the budgets of state, local, or tribal governments.
Estimated cost to the Federal Government: This legislation
would direct EPA to implement S. 544 using up to $1 million a
year from amounts authorized to be appropriated for other
activities under current law. Although S. 544 would not
authorize additional appropriations to implement the
requirements of the bill, CBO estimates that implementing S.
544 would cost about $250 million a year for the next few
years, subject to appropriation of the necessary amounts. Costs
in later years would probably decline gradually from that
level. The additional discretionary spending would cover EPA's
costs of ensuring that the data underpinning the studies used
to support EPA's regulations and other regulatory activities
are accessible to the public in a format that enables
independent analysis and reproduction of the results.
Basis of estimate: Under current law, EPA typically spends
about $500 million each year to support research and
development activities, including assessments to determine the
potential risk to public health from environmental
contaminants. The number of studies involved in supporting
covered actions depends on the complexity of the issue being
addressed. For example, when addressing a recent issue with
flaring at petroleum refineries, EPA relied on a dozen
scientific studies. In contrast, when reviewing the National
Ambient Air Quality Standards, the agency relied on thousands
of scientific studies. In total, the agency relies on about
50,000 scientific studies annually to perform its mission--
although some of those studies are used more than once from
year to year.
Although EPA provides some access to the scientific and
technical information it uses when issuing regulations and
performing other related activities, enacting this bill would
require EPA to provide a greater degree of transparency. Based
on information from EPA, CBO estimates that the agency would
spend, on average, $10,000 per scientific study for activities
to meet the bill's requirements. Specifically, such funding
would cover the costs of obtaining all of the underlying data
used in a study, reviewing the data to address any
confidentially concerns, formatting the data for public access,
providing access to the computer codes and models used in the
study's analysis, and providing descriptions and documentation
on how to access the data. Such activities could entail
correspondence and negotiations with study authors and
publishers and computer processing services to construct and
maintain data bases to store study-related information.
The costs of implementing S. 544 are uncertain because it
is not clear how EPA would meet the bill's requirements. If EPA
continued to rely on as many scientific studies as it has used
in recent years, and worked to make all of the technical
information used in such studies available to the public as
directed by S. 544, then implementing the bill would cost at
least several hundred million dollars a year. However, EPA
could instead rely on significantly fewer studies each year in
support of its mission, and limit its spending on increased
transparency to a relatively small expansion of existing study-
related activity; in that scenario, implementing the bill would
be much less costly.
Thus, the costs of implementing S. 544 would ultimately
depend on how EPA adapts to the bill's requirements. (It would
also depend on the availability of appropriated funds to obtain
access to all data underlying the scientific studies it uses
and prepare it for use by the public.) CBO expects that EPA
would modify its practices, at least to some extent, and would
base its future work on fewer scientific studies, especially
those studies that have easily accessible or transparent data.
Any such modification of EPA practices would also have to take
into consideration the concern that the quality of the agency's
work could be compromised if that work relies on a
significantly smaller collection of scientific studies; we
expect that the agency would seek to reduce its reliance on
numerous studies without sacrificing the quality of the
agency's covered actions related to research and development.
On balance--recognizing the significant uncertainty
regarding EPA's potential actions under the bill--CBO expects
that the agency would probably cut the number of studies it
relies on by about one-half and that the agency would aim to
limit the costs of the new activities required by the bill. As
a result, CBO estimates the incremental costs to the agency
would be around $250 million a year initially, subject to
appropriation of the necessary amounts. In our assessment that
figure lies near the middle of a broad range of possible
outcomes under S. 544. CBO expects that the additional costs to
implement the legislation would decline over time as EPA became
more adept and efficient at working with authors and
researchers to ensure that the data used to support studies are
provided in a standardized and replicable form.
Pay-As-You-Go Considerations: None.
Intergovernmental and private-sector impact: S. 544
contains no intergovernmental or private-sector mandates as
defined in UMRA and would not affect the budgets of state,
local, or tribal governments.
Previous CBO estimate: On March 11, 2015, CBO transmitted a
cost estimate for H.R. 1030, the Secret Science Reform Act of
2015, as ordered reported by the House Committee on Science,
Space, and Technology on March 3, 2015. S. 544 and H.R. 1030
are similar and the CBO cost estimates for each bill are the
same.
Estimate prepared by: Federal costs: Susanne S. Mehlman;
Impact on state, local, and tribal governments: Jon Sperl;
Impact on the private sector: Amy Petz.
Estimate approved by: Theresa Gullo, Assistant Director for
Budget Analysis.
MINORITY VIEWS OF BOXER, CARPER, CARDIN, SANDERS, WHITEHOUSE, MERKLEY,
GILLIBRAND, BOOKER, AND MARKEY ON S. 544, AS REPORTED BY THE EPW
COMMITTEE
The ``Secret Science Reform Act of 2015'' is an attempt to
stifle the use of good science under the disguise of `good
governance'. It would result in a reduction in the scientific
and technical information available to the EPA to inform
decisions on covered actions, thus diminishing the Agency's
ability to protect public health and welfare.
There are several major concerns with this bill.
By requiring all data used by EPA in covered actions to be
made publicly available by the scientist or journal in an
online repository, the bill prevents EPA from using sound
science from many sources on which it currently relies. Forcing
scientists to make their intellectual property publicly
available in order to be used to support covered actions by the
EPA would have a chilling effect on research efforts, because
safeguarding intellectual property is a critical driver for
innovation. In addition, the human health studies available to
the EPA would be vastly restricted due to medical records
privacy laws that would preclude the publication of the data
used therein online. The bill's `data transparency' provision
would therefore severely decrease the number of studies the EPA
could use, reduce the overall quantity of scientific
information that could be relied upon to inform and support EPA
covered actions, and discourage the scientific community from
pursuing research in critically important environmental and
health fields.
The bill also leads to delays in the availability of
scientific information to EPA because peer-reviewed studies
typically cannot be made immediately available online. Most
journals have embargo periods within which the content of the
articles they publish cannot be released to the public. This
would introduce delays between when a finding is accepted by
peer-reviewed publications and when it could be used by the EPA
to inform a covered action. This is another way in which the
bill aims to stall and limit the EPA's ability to protect human
health and the environment. Once a scientific or technical
finding has been peer-reviewed, it should be made available to
the EPA for prompt consideration, especially when it pertains
to urgent and important public health and environmental
matters.
The bill also requires that the data EPA uses to support
covered actions be reproducible, which precludes the use of
studies related to one-time events and longitudinal studies.
Longitudinal studies, such as a 40-year epidemiological study
that follows patients throughout their lives, are often used in
public health research, but would not be considered to be
`reproducible' under this bill. Research on one-time events,
like the Deepwater Horizon oil spill, can provide very valuable
insights, furthering the understanding of physical and
biological processes and systems, but would also not qualify as
`reproducible' under this bill.
In addition, requiring scientific and technical information
be made public would introduce significant administrative
costs. The Congressional Budget Office estimated that the
annual implementation costs of S. 544 would amount to over $250
million. Yet S. 544 provides only $1 million for this purpose.
The White House issued a Statement of Administrative Policy
(SAP) recommending a veto threat before the House of
Representatives reported out a similar bill. The SAP explains,
``The bill would impose arbitrary, unnecessary, and expensive
requirements that would seriously impede the Environmental
Protection Agency's (EPA's) ability to use science to protect
public health and the environment, as required under an array
of environmental laws, while increasing uncertainty for
businesses and States.''\1\
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\1\https://www.whitehouse.gov/sites/default/files/omb/legislative/
sap/114/saphr1030r_20150303.pdf.
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Health and scientific organizations have also expressed
serious concerns about the legislation.\2\ According to the
American Lung Association and American Thoracic Association,
``the legislation [H.R. 1030]'' . . . will compel the U.S.
Environmental Protection Agency to either ignore the best
science by prohibiting the agency from considering peer-
reviewed research that is based on confidential patient
information or force EPA to publically release confidential
patient information, which would violate federal law. This is
an untenable outcome that would completely undermine the
ability of the EPA to perform its responsibilities under the
Clean Air Act and myriad other federal laws. The legislation
will not improve EPA's actions; rather it will stifle public
health protections.'' In a letter to the Senate EPW Committee,
the American Association for the Advancement of Science wrote,
``while transparency and reproducibility are of utmost
importance to the scientific community, this mandate [S. 544]
is overly broad and will have severe unintended consequences.''
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\2\Numerous scientific societies, research universities, and public
health and environmental organizations oppose the legislation
including: American Association for the Advancement of Science,
American Lung Association, American Thoracic Society, American
Statistical Association, American Association for Justice, American
Public Health Association, Union of Concerned Scientists, National
Physicians Alliance and the International Society for Environmental
Epidemiology.
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During markup, the Committee considered three amendments as
described in the Rollcall Votes section above. Passed by voice
vote was a Boxer-Markey amendment preventing the censorship of
scientists and their use of common scientific terms. Following
several high profile instances of state government censorship
of scientists, the amendment would ensure that EPA, federal
officials or employees, or federal agencies are not censored
when discussing peer-reviewed science.\3\ It would clarify that
federal officials and employees can use terms that are common
in peer-reviewed scientific literature, including terms related
to climate change, air and water pollution impacts, and
exposure to toxic chemicals.
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\3\See, ``In Florida, officials ban term `climate change''' Miami
Herald (March 8, 2015) available at http://www.miamiherald.com/news/
state/florida/article12983720.html.
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Two Markey-Boxer Amendments were rejected. The first one
required that the funding sources of scientific and technical
information be made publicly available, since transparency is
the stated goal of this bill. The funding source of a research
study used in regulatory activities should not be a secret, to
avoid potential conflicts of interest. The second Markey-Boxer
amendment would have allowed the EPA to use peer-reviewed
science even if it cannot be made publicly available. This
amendment would protect the EPA from limitations on accessing
the data it needs to protect public health and the environment
regardless of barriers to making that data immediately
available to the public.
In addition to issues with the bill itself, the Majority
members of the Senate EPW Committee used an inadequate process
to report S. 544 out of the Committee. Despite receiving a
letter signed by all minority members of the EPW Committee
asking to return to regular order by delaying the mark up of S.
544 until the Committee had the opportunity to hear witness
testimony about the bill, the majority decided to reject this
request and moved forward with the mark up.\4\ Historically,
significant bills are moved through the Committee without first
holding a legislative hearing only if they represent a
bipartisan consensus work product or have been considered
through regular order in the previous Congress. S. 544 met
neither of these tests. The Senate has never held a hearing on
any version of the ``Secret Science Reform Act of 2015''. For
this controversial, partisan legislation, the Committee should
have held a legislative hearing to give all members the
opportunity to understand the consequences of the bill.
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\4\Letter available at: http://www.epw.senate.gov/public/
index.cfm?FuseAction=PressRoom.PressReleases&ContentRecord_id=d17ff777-
da8b-d123-ee8a-0f508d5a365b.
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Barbara Boxer.
Thomas R. Carper.
Benjamin L. Cardin.
Bernard Sanders.
Sheldon Whitehouse.
Jeff Merkley.
Kirsten Gillibrand.
Cory A. Booker.
Edward Markey.
Changes in Existing Law
In compliance with section 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill
as reported are shown as follows: Existing law proposed to be
omitted is enclosed in [black brackets], new matter is printed
in italic, existing law in which no change is proposed is shown
in roman:
* * * * * * *
ENVIRONMENTAL RESEARCH, DEVELOPMENT, AND DEMONSTRATION AUTHORIZATION
ACT OF 1978
* * * * * * *
[Sec. 6. [42 U.S.C. 4363 note] (a) The Administrator of the
Environmental Protection Agency shall establish a separately
identified program to conduct continuing and long-term
environmental research and development. Unless otherwise
specified by law, at least 15 per centum of any funds
appropriated to the Administrator for environmental research
and development under section 2(a) of this Act or under any
other Act shall be allocated for long-term environmental
research and development under this section.
[(b) The Administrator, after consultation with the Science
Advisory Board, shall submit to the President and the Congress
a report concerning the desirability and feasibility of
establishing a national environmental laboratory, or a system
of such laboratories, to assume or supplement the long-term
environmental research functions created by subsection (a) of
this section. Such report shall be submitted on or before March
31, 1978, and shall include findings and recommendations
concerning--
[(1) specific types of research to be carried out by
such laboratory or laboratories;
[(2) the coordination and integration of research to
be conducted by such laboratory or laboratories with
research conducted by existing Federal or other
research facilities;
[(3) methods for assuring continuing long-range
funding for such laboratory or laboratories; and
[(4) other administrative or legislative actions
necessary to facilitate the establishment of such
laboratory or laboratories.]
(b)(1) The Administrator shall not propose, finalize, or
disseminate a covered action unless all scientific and
technical information relied on to support such covered action
is--
(A) the best available science;
(B) specifically identified; and
(C) publicly available online in a manner that is
sufficient for independent analysis and substantial
reproduction of research results.
(2) Nothing in the subsection shall be construed as--
(A) requiring the Administrator to disseminate
scientific and technical information; or
(B) superseding any nondiscretionary statutory
requirement.
(3) In this subsection--
(A) the term `covered action' means a risk, exposure,
or hazard assessment, criteria document, standard,
limitation, regulation, regulatory impact analysis, or
guidance; and
(B) the term `scientific and technical information'
includes--
(i) materials, data, and associated protocols
necessary to understand, assess, and extend
conclusions;
(ii) computer codes and models involved in
the creation and analysis of such information;
(iii) recorded factual materials; and
(iv) detailed descriptions of how to access
and use such information.
(4) The Administrator shall carry out this subsection in a
manner that does not exceed $1,000,000 per fiscal year, to be
derived from amounts otherwise authorized to be appropriated.
[all]