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New Interior rule would limit which scientific studies agency can consider

New Interior rule would limit which scientific studies agency can consider
© Greg Nash

The Interior Department is pushing ahead with a controversial proposal that would prohibit the agency from considering scientific studies that don’t make all of their underlying data public.

Critics argue that the move, described by the agency as an effort to increase transparency, would sideline landmark scientific research, particularly in cases where revealing such data would result in privacy violations.

The proposal, dubbed the Promoting Open Science rule, mirrors a similar effort at the Environmental Protection Agency (EPA), which critics argue would block that agency from considering renowned public health studies.

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Interior’s effort first surfaced as an order in October 2018, but the agency is now attempting to cement it as a rule, forwarding a proposal in mid-February to the White House Office of Management and Budget. The text of the rule is not yet public, but if finalized, critics fear it could hamstring future administrations from broadly considering science. Efforts to roll back the rule, if implemented, could take years.

“It doesn't do anything to help transparency. It’s designed to restrict the science the agency can use,” said Andrew Rosenberg with the Union of Concerned Scientists, arguing the agency is caving to pressure from polluting industries.

Interior currently must rely on a wide variety of scientific research when weighing decisions. For example, oil and gas companies seeking permits on public lands must ensure they can meet air quality standards. And the department has to evaluate any impact on endangered species.

Interior argued the new rule would give the public more insight into how the agency makes its decisions.

“The proposed rule will ensure the department bases its decisions on the best available science and provides the American people with enough information to thoughtfully and substantively evaluate the data, methodology and analysis used by the Department to inform its decisions,” Interior spokesman Conner Swanson said in an email to The Hill on Tuesday.

But Rosenberg sees the rule as caving to industry.

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“Is there some clamoring from the public, anyone other than by industry for this? The answer is almost certainly not,” he said.

Rosenberg said that even if the public wanted to review the scientific studies the department relies on, they wouldn’t need the underlying data, which sometimes contains personal data.

“Over my career, I’ve reviewed hundreds of studies and papers. You don't review the raw data, you review the basic methods and statistics and results and see if the results support any conclusions that were drawn,” he said.

Elizabeth Klein, who was associate deputy Interior secretary during the Obama administration, said it’s tough to know just how restrictive the rule might be because the 2018 order lacked clarity.

“The larger concern that lots of people have is it seems this administration has a pattern of, when disagreeing about policy choices, instead of just disagreeing about policy choices, they attack the underlying science, which is just a disingenuous way of trying to discredit the real concerns of impacts on endangered species or water resources or critical habitat,” said Klein, who now works at the New York University Law School State Energy & Environmental Impact Center.

Restricting which studies Interior relies on could land the agency in legal trouble, tipping the scales in favor of environmental groups that have filed suits against the department over its moves during the Trump administration.

“When you’re in court, science is what prevails,” said Steve Ellis, who worked at Interior until 2016, holding the highest career-level post at the Bureau of Land Management.

“If your decisions are science-based they have a much better chance of holding up to scrutiny,” he added.

A similar proposal has worked its way through EPA’s rulemaking process, spurring more than 600,000 public comments, mostly negative, and provoking criticism from the agency’s independent Science Advisory Board (SAB).

The SAB said there need to be exceptions to protect both personal and confidential business data in scientific studies.

A draft report from SAB in December reiterated “concerns about the scientific and technical challenges and feasibility of implementing some requirements,” while other key considerations were “omitted from the proposal or presented without analysis.”

The Union of Concerned Scientists is fighting that rule as well, and Rosenberg argued both will have unfortunate consequences if implemented.

“It’s just another way to block public health and safety and environmental regulations, and that is bad news for the public,” he said.