What is a public document? That question is the latest battleground in the yearslong war over proposed changes in what kinds of studies and data the U.S. Environmental Protection Agency (EPA) will allow to be considered in shaping regulations.
The changes, which EPA says are meant to promote transparency and “sound science,” have been fiercely criticized by the research community and environmental groups. They would generally bar the agency from using data that are not publicly available. But critics worry that excluding those data will allow EPA to ignore studies that rest on difficult-to-release information, such as confidential patient records, that have played a key role in shaping stiffer regulations.
Last month, EPA opened a new front by proposing to define a public document in a way that critics say runs counter to the agency’s professed goal of transparency. The definition, included in a 3 March EPA notice seeking additional comments on the broader transparency proposal, covers documents available through “disclosures to the general public that are required to be made by federal, state, or local law.” In practice, that means the definition encompasses data and documents that can be obtained from EPA only through requests made under the federal Freedom of Information Act (FOIA).
The problem with the FOIA process, environmental groups say, is that it can be slow, cumbersome, arbitrary, and costly. They believe the public will wind up knowing less, rather than more about how EPA operates if the agency can decide what information to release. And they fear it could allow EPA to continue to use industry-supplied data that are not actually public while barring the use of other studies that have been published in the open literature.
For example, they note EPA routinely requires and uses unpublished industry-sponsored studies and industry-generated information to assess and regulate chemicals. But that information is “held behind a FOIA wall that is slow and difficult to get over, and largely impenetrable to the general public,” says Jennifer Sass of the Natural Resources Defense Council (NRDC), one of many groups that routinely submit FOIA requests to EPA.
The agency can take months or years to fully respond to a FOIA request, Sass notes, and some disputes are ultimately resolved by a federal judge. That often leaves outsiders in the dark about what data EPA is using to shape its rules, says NRDC’s Lucas Rhoads, who tracks pesticide regulation. “Without the documents,” he says, “it’s hard to make substantive comments on what EPA has proposed.”
Relying on FOIA to determine what is publicly available is a bad idea, believes Steven Aftergood, who directs the Federation of American Scientists’s Project on Government Secrecy. “To say that something is FOIA-able is actually admitting that it is not publicly available … if it were, a FOIA request would be redundant,” Aftergood says, adding that he files FOIA requests “on an almost daily basis.”
Agencies already have ample leeway to deny a request, he notes, including if it would result in the disclosure of personal data or trade secrets. “There are lots of things that you ask for that will not be released,” he says.
Letting EPA call the shots is fine with Steven Milloy, a Washington, D.C.–based lobbyist and libertarian political commentator who has advocated for EPA’s transparency proposal. “The government gets to decide what it wants to give you,” Milloy says. “That’s how FOIA works.”
Milloy doubts EPA would use FOIA to deny requests for research data. “If you just want the raw environmental data, I can’t think of a reason that the government wouldn’t give it to you,” he says.
Aftergood and Rhoads, however, suggest a much better way for EPA to meet its transparency goal would be to create a searchable, online library of all documents and data it uses in its work. Aftergood even offers a simple yardstick for meeting that goal: “If I look it up, I’ll find it.”
The battle over the rule is expected to stretch well into the year. EPA initially asked for comments by 17 April, but yesterday it extended the deadline to 18 May, responding to complaints that the coronavirus pandemic had disrupted the process.
Representative Eddie Bernice Johnson (D–TX), who leads the House of Representatives science committee, disagrees with the new proposed rule. But she and other Democrats have welcomed the extension.
“Now, more than ever, we can appreciate the importance of using the best available science to protect public health,” she said in a statement. “I hope EPA will facilitate the public’s ability to comment on this dangerous rulemaking in a time of unprecedented disruption to everyday life.”
*Correction, 13 May, 3 p.m.: An earlier version of this story misspelled Steven Milloy's name.