2013 Year End Review: Working Toward a More Transparent EPA
EPW Republicans press EPA to move forward with making public their secret science and fixing economic analysis deficiencies used to justify expensive rules and regulations
December 16, 2013

During 2013, the U.S. Senate Environment and Public Works Committee Republicans and ranking member U.S. Sen. David Vitter (R-La.), have been working to lift the veil of secrecy from the U.S. Environmental Protection Agency (EPA), especially regarding their use of hidden or otherwise dubious science.

Earlier this year, Sen. Vitter led efforts during the process of Gina McCarthy's nomination to be EPA Administrator to improve transparency measures throughout the Agency, especially focusing on the secret science used to justify expensive new rules and regulations. On July 9, 2013, Sen. Vitter allowed Gina McCarthy's nomination to proceed after extensive negotiations with the Agency, regarding commitments from them on a number of 5 specific transparency requests, including:

  • As well as having already providing certain requested data, EPA has initiated the process of obtaining the requested scientific information, as well as reaching out to relevant institutions for information on how to de-identify and code personally identifying information that may be included in some of the data.
  • EPA launched a process to convene an independent panel of economic experts with experience in whole economy modeling to review EPA's ability to measure full regulatory impacts, and to make recommendations to the agency.
  • To help address transparency issues, in particular the "sue and settle" practice, EPA created websites to publish the Notices of Intent to Sue (NOI) and Petitions for Rulemaking (PFR) upon receipt. Those websites can be found at http://www2.epa.gov/aboutepa/petitions-rulemaking and http://www.epa.gov/ogc/noi.html.
  • A commitment by EPA to mandate the re-training of the 17,000+ EPA workforce in proper protocols involving Freedom of Information Act (FOIA) requests, as well as issuing new guidance on records maintenance and use of personal email accounts pursuant to and upon completion of the audit by the Inspector General.

All successes in these areas are integral steps in lifting the veil of secrecy at EPA.

Below are a few of the key actions Vitter took this year:

March 4: Sen. Vitter and Rep. Lamar Smith reiterate call for transparency and release of EPA secret data

March 12: Sunshine Week - EPA's Secret Science

April 5: Eye on the EPA - A closer look at Gina McCarthy

April 8: EPA's failure to share scientific data with Congress & the American public

April 10: Vitter & EPW Republicans release requests for Gina McCarthy nomination

April 11: How would Gina McCarthy change EPA's questionable transparency practices for the better?

April 18: Eye on the EPA - Lifting the veil of secrecy

April 24: Eye on the EPA - Transparency through data access

April 25: Eye on the EPA - Snapshot approach toward economic analysis doesn't work

April 26: Eye on the EPA - Share ‘intent to sue' notices with the public

May 6: Sen. Vitter highlights Gina McCarthy's unresponsive ‘responses' ahead of confirmation hearing

May 9: EPW Republicans delay Gina McCarthy nomination vote

June 12: Sen. Vitter reiterates request for release of EPA secret data

July 9: Sen. Vitter & EPA Republicans get major agreements from EPA on 5 transparency requests

August 21: EPA takes first steps in acquiring and releasing secret data

EPA's Secret Science Behind Major Air Rules

The science and data supporting EPA's new rules and regulations, which oftentimes lead to burdensome and unnecessary economic struggles for American businesses, are rarely shared with the public. Sen. Vitter requested that EPA share the underlying data used to promulgate CAA rules so that the public can independently examine the cost-benefit analyses and other issues. This includes a full set of data files for the controversial American Cancer Society Study; the Harvard Six Cities Study; HEI/Krewski et al. 2009; Lepeule 2012; Pope et al. 2002; Pope et al. 2009; and Jerrett 2009, and the coding of Personal Health Information (PHI).

Status: During the course of negotiations with then-nominee McCarthy, EPA delivered raw data to the EPW Committee without any personal identifiers on the studies listed above. EPA reached out to Harvard, HEI, and ACS to solicit ideas and possible ways to access the remaining underlying data and code anything with identifying information. While all three responded, ACS implied in their response that Congress should not have asked for or receive access to the science in their study, and HEI's response was vague and unsatisfactory. Harvard said, "A great deal of time has elapsed since data collection began in these long-term air pollutions studies. Existing electronic data from the early years of the HSC study may have deteriorated, or may be stored on media that cannot now be read of deciphered by any available devices or software."

Essentially, the data supporting these studies, which led to the creation and implementation of major CAA rules, seemingly no longer exists, or otherwise has yet to go through de-identification of the data so as to facilitate independent analysis.  This begs the question: If the data does not exist, or if the agency is going to continue to fail to provide all data despite recommendations on how to de-identify and make public, why is EPA using these studies?

EPA's Shortsighted Approach Toward Economic Modeling Does Not Work

EPA has failed on numerous occasions to conduct the cost-benefit analyses on major rules that are required under various executive orders and by law. As such, Sen. Vitter requested that EPA conduct those analyses, specifically through issuance of new guidance mandating "whole economy" modeling on major rules.

Status: The EPA committed to work with the Agency's Science Advisory Board (SAB) to establish an expert panel to advise the Agency on the use of whole economy modeling to estimate the impacts resulting from the benefits and costs of EPA regulations.  The agreement is not to use any of EPA's current economics panel members (Environmental Economics Advisory Committee).  The SAB is charged with selecting a balanced panel, including members that have expertise in whole economy modeling at the macro and micro level, including granular analysis of regulatory impact and full causality/ripple effects. EPW is working with SAB in this process, and also to develop questions and criteria for panel members. SAB is expected to share a timeline for its economy-wide modeling review this week.

Notices of Intent to Sue/Petitions for Rulemaking

In the ongoing legal battles with EPA and various private sector groups and organizations, the Agency is responsible for making public and regularly updating all notices of intent to sue, petitions for rulemaking, and the promulgation of guidance received by EPA. Unsurprisingly, EPA has done a poor job of tracking, listing, and updating its website on these petitions and notices. Sen. Vitter requested that EPA fulfill its obligations, as well as share all comments received on a consent order or settlement agreement with the presiding judge prior to the Agency certifying and agreeing to support any such consent order or settlement agreement, which is mandated by law.

Status: The EPA committed to establish a website to post petitions for rulemaking received by the Agency. That website, along with a separate website specifically created for disclosure of notices of intent to sue, is now live and tracks petitions received by the Agency starting at the beginning of 2013. This achievement is a necessary first step in piercing the veil of secrecy on sue and settle, the common practice of secretive, closed-door agreements between EPA and environmental organizations friendly to this Administration that shut out States and affected parties. Those websites can be found at http://www2.epa.gov/aboutepa/petitions-rulemaking and http://www.epa.gov/ogc/noi.html.

Click here to read the EPW Republican staff report, "Cooperative Federalism - Neglecting a Cornerstone Principle of the Clean Air Act: President Obama's EPA Leaves States Behind."

Examples of the Costly Impacts of Sue-and-Settle

Regional Haze: Individual States are supposed to regulate regional haze. However, EPA is usurping state control of the program in an attempt to shut down coal-fired power plants. EPA and state officials have disagreed over which emissions controls were required at a number of coal-fired power plants for compliance with the program. Environmental groups have filed lawsuits alleging that EPA failed to meet non-discretionary deadlines to act on the Regional Haze State Implementation Plans (SIPs). Rather than litigate these cases, EPA chose to settle with the environmental groups, and require Federal Implementation Plans (FIPs), which are several times more expensive than the states' SIPs. EPA's plan for Oklahoma would cost $1.2 billion more than the state's SIP. In Arizona, the Navajo Generating Station installed low nitrogen oxide burners at a cost of $45 million; yet EPA's preferred system would cost more than $700 million. In Wyoming, EPA's FIP is projected to impose $96 million per year in additional costs.

Cross State Air Pollution Rule: On July 6, 2011, EPA finalized the Cross State Air Pollution Rule (CSAPR) requiring 27 upwind States to sulfur dioxide (SO2) and nitrogen oxide (NOx) emissions that may contribute to downwind nonattainment for ozone and particulate matter. Setting a compliance deadline of just 6 months later (January 1, 2012), the final rule usurped cooperative federalism by forcing Federal Implementation Plans (FIPs) on the States to comply with the cap established in their emission budgets. It also added several States to the rule, which were not included in the proposal. In response to the rule, multiple utilities announced that in order to comply, the closures of facilities and mining operations would be necessary, which obviously means jobs would be lost. Additionally, an independent study based on the draft rule estimated an increase in consumer power prices of as much as $514 million per year in 2012 and 2013.

Social Cost of Carbon - part of the ongoing transparency challenge at EPA

The Social Cost of Carbon (SCC) is a theoretical estimate of the monetized damages associated with an incremental increase in carbon emissions in a given year, the purpose of which is so agencies can attempt to justify theorized "social benefits" of reducing carbon dioxide emissions into cost-benefit analyses of regulatory actions that impact consumers and our economy. Most notably, the values take into account speculative negative consequences while ignoring positive correlations associated with increased carbon dioxide emissions. For example, economic damages from climate change in the Dynamic Integrated Climate Change (DICE) model are represented by a fractional loss of gross economic output in each period. However, the economic benefits of increased crop production and affordable, reliable energy are not factored into the model.

The increase in the social cost of carbon is significant due to its potential effect on President Obama's climate change agenda. The model will be used to evaluate the costs and benefits of new climate policy and as a justification of implementing such policy. For example, the Department of Energy recently updated its energy- efficiency standards for microwaves and the agency used a higher figure for the SCC in calculating the benefits of the rule. A higher SCC means agencies could invent an analysis that supports virtually any new regulations to curb GHGs because stricter standards could more easily pass a cost-benefit analysis, such as new rules for existing power plants. EPW Republicans are challenging the increase in SCC because it could also give the Administration incentive to push for carbon tax legislation.

In February 2010, an Interagency Working Group made up of 12 Agencies and Executive offices released a Technical Support Document (TSD) on the Social Cost of Carbon for Regulatory Impact Analysis, which requires agencies to "assess both the costs and the benefits of the intended regulation and, recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs." Except for the general list of participating offices on the cover of the TSD, there has been essentially no information on who was involved, at what level, what their participation entailed, or anything about the process behind developing the SCC. The TSD was updated in May 2013, and again in November, Howard Shelanksi (OIRA Administrator) issued further updates following two errors.

Sen. Vitter lead a group of Senators in challenging a recent revision of the Administration's estimate for the SCC, which has since been used in developing new and costly regulations.

Status: It wasn't until November 5, 2013, when Sen. Vitter questioned Sarah Dunham, Director of EPA's Office of Atmospheric Programs, about the SCC that any participants were confirmed. Dunham confirmed her office's involvement in the IWG, providing technical analyses and modeling for developing the SCC estimates.

 

EPW Republicans will be sending out additional documents recapping the committee's work during 2013 on various issues. Stay tuned for more in the coming days.

 

-30-




Majority Office
410 Dirksen Senate Office Bldg.Washington, DC 20510-6175
phone: 202-224-6176
Minority Office
456 Dirksen Senate Office Bldg.Washington, DC 20510-6175
phone: 202-224-8832