- - Thursday, May 29, 2014


Ben Franklin warned, “[i]n this world nothing can be said to be certain, except death and taxes.” Were he alive today, he would likely add ever-more costly, new regulations, inadequate transparency and junk science.

As the power and scope of the administrative state grows larger and the issues it tackles, such as climate change, become more abstruse, public confidence in the validity of its decisions is critical. The public’s willingness to accept governmental decisions depends on our ability to understand the reasoning behind them and a principled trust that they are reached through a fair process fully compliant with applicable law.

The Obama administration’s ostensible focus on open government, transparency and scientific integrity was a clear recognition that public mistrust of governmental decision is in part traceable to a lack of transparency and the integrity of the science underlying much of what it does. This has nowhere been more evident than in the controversy generated by many Environmental Protection Agency (EPA) decisions and regulations.

Despite former EPA Administrator Lisa Jackson’s promise of “unprecedented transparency,” the agency’s 2009 greenhouse-gas endangerment findings are an excellent example of the need for greater transparency. The agency concluded that carbon dioxide and five other greenhouse gases endangered public health and welfare within the meaning of the Clean Air Act. On close examination, however, it seems the agency has been far from transparent in showing how the peer-review processes used to vet the climate-science assessments supporting those findings satisfied the strict peer-review process standards required by a law called the Information Quality Act.

The act is an obscure statute that very few people know very much about. Detailed guidelines interpreting the act published by the Office of Management and Budget (OMB) direct federal agencies to ensure peer review of all “influential scientific information” or “highly influential scientific assessments” they use and disseminate to the public, particularly if the information may lead to regulatory action. Federal agencies also are directed to provide adequate administrative mechanisms permitting stakeholders to review the failure of agencies to respond to their requests for correction or requests for reconsideration of such scientific information.

The EPA’s endangerment findings had 28 such assessments primarily supporting agency conclusions, but only four were actually developed by the agency itself. Sixteen were developed by five other federal agencies. Significantly, the Department of Commerce’s National Oceanic and Atmospheric Administration (NOAA), which serves as the federal government’s lead climate-science agency, was responsible for the development of seven. The remaining eight were prepared by three non-U.S. government entities: the Intergovernmental Panel on Climate Change; the private, nonprofit National Research Council of the National Academies of Science; and the regional Arctic Council.

The Information Quality Act required the EPA to ensure each of the 28 assessments supporting its endangerment findings had been robustly and properly peer-reviewed. This would not have been an insignificant undertaking, and is required to expose serious systemic flaws violating the letter and spirit of the act.

For example, six separate National Research Council peer-review reports reveal that a number of university-affiliated scientists played a key role in reviewing climate assessments they helped develop. On several occasions, without explanation, the council repeatedly used the same reviewers in multiple assessments.

Granted, OMB’s guidelines presume the National Research Council’s scientific peer-review processes usually fully satisfy the act’s requirements, but this presumption is rebuttable where the facts show such processes might have been compromised. At the very least, these OMB guidelines require public disclosure and a showing that apparent conflicts-of-interest (at both the personal and institutional levels), as well as bias and panel-imbalance issues, have been resolved. To avoid a perception of impropriety, this should have occurred before a hand-selected National Research Council committee reviewed the assessments.

Freedom of Information Act requests filed by the nonprofit Institute for Trade, Standards and Sustainable Development challenge the EPA and the NOAA to substantiate how the peer-review processes they employed to vet the climate-science assessments supporting EPA’s 2009 greenhouse-gas endangerment findings actually satisfied Information Quality Act requirements.

Disclosure of these records would contribute significantly to an understanding of whether the EPA’s growing list of climate-related regulations are founded on the peer-review processes required by the act. In doing so, they would go far toward defusing public demand for a thorough re-examination of the agency’s endangerment findings and provide comfort to those who will have to live with regulations based on them.

Without transparency and public evidence that the peer-review process was rigorous, fair and equitable, a troubling question arises: Can the public be expected to accept findings of scientific “fact” arrived at by slipshod methods and in ways contrary to existing law?

Lawrence A. Kogan is chief executive of the Institute for Trade, Standards and Sustainable Development and managing principal of the Kogan Law Group. Richard D. Otis Jr. is an environmental-policy expert and has held senior positions at the EPA.