May 14, 2018

U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt recently proposed a new administrative rule, “Strengthening Transparency in Regulatory Science,” which threatens the transparency and integrity of scientific studies used in federal decision-making.

Pruitt argues in an EPA press release that the proposed rule promotes greater transparency, “The era of secret science at EPA is coming to an end… The ability to test, authenticate, and reproduce scientific findings is vital for the integrity of rulemaking process. Americans deserve to assess the legitimacy of the science underpinning EPA decisions that may impact their lives.”

However, the scientific community interprets the proposed rule quite differently. ESA issued a statement expressing its concern about the rule as did the American Association for the Advancement of Science, the American Chemical Society, and the American Geophysical Society, among others.

Notably, a distinguished group of leading science journal editors questions the reasoning behind the EPA rule. Jeremy Berg (Science), Philip Campbell (Nature), Veronique Kiermer (Public Library of Science), Natasha Raikhel (Proceedings of the National Academy of Sciences), and Deborah Sweet (Cell) wrote a joint statement published in Science. The editors’ statement surmised, “Excluding relevant studies simply because they do not meet rigid transparency standards will adversely affect decision-making processes.”

The EPA proposed rule origin springs from a previous piece of failed U.S. House of Representatives legislation, dubbed the HONEST Act, which mandated all scientific data and findings be made publicly available before they are used to justify agency regulations. It was the brainchild of House Science Committee Chair Lamar Smith (R-TX). Versions of the bill passed the GOP-controlled House three times, yet stalled in the Senate. The HONEST Act was opposed by ESA along with 22 other scientific organizations.

Pruitt asserts the regulation would ensure “science transparency,” going on to argue that, “[T]he science that we use is going to be transparent, it’s going to be reproducible, its (sic) going to be able to be analyzed by those in the marketplace… so that we can enhance confidence in our decision-making.”

However, the problem with the rule turns on its very concept. What indeed could be wrong with the assertion that all scientific findings should be transparent and reproducible? As explained by Michael Hiltzik in his Los Angeles Times piece:

The answer, as Pruitt and the drafters of bills requiring disclosure of raw data and analytical methodologies well know, is that much of the scientific research important in developing regulations can’t be made public. Some of it is proprietary information belonging to scientists who developed it as part of their research. Some is personal information about human participants in studies underlying science-based rule-making.”

Another aspect of the rule-making process is the length of the comment period. Usually, with a rule that has such long-term policy influence, the comment period can be open for two to three years. For this rule, the comment period is a scant 30 days and comments must be received on or before May 30, 2018, via the Federal Register. ESA submitted a letter to the EPA requesting that the comment period be extended by 60 days.

A letter to Pruitt, signed by U.S. Senator Tom Carper (D-DE), the top Democrat on the Environment and Public Works Committee; Senators Sheldon Whitehouse (D-RI), Jeff Merkley (D-OR), Kirsten Gillibrand (D-NY), Cory Booker (D-NJ), Edward Markey (D-MA) and Chris Van Hollen (D-MD), stated in part the following:

“The proposed new policy will require EPA-when developing rules-to rely only on scientific studies where the underlying data have been made public and are available to be reproduced. Such a policy would likely violate several laws that mandate the use of ‘best available science,’ including the Toxic Substances Control Act and Safe Drinking Water Act because it would require EPA to ignore some of the ‘best’ scientific studies.”

EPA historically has relied upon long-term population and disease surveys that have patient identifiers that are kept from public view. These studies have informed the regulations that set limits for air and water pollution. The thrust of the EPA proposed rule is less an assurance of scientific transparency than it is a tool to limit the number of scientific studies that can be utilized by the agency. It is evident this proposed rule, touted by Pruitt as the ‘secret science’ rule, could be crucial in deconstructing important safeguards on the environment and public health.

Meanwhile actions on Capitol Hill, in the form of sister scientific integrity bills, could restore some semblance of protection for scientific findings if the bills can find bipartisan support for passage. Senate Democrats introduced legislation in February, which they called the Scientific Integrity Act (S. 338). In March, Democrats in the House introduced a similar bill, H.R. 1358. Both bills are aimed at securing an open exchange of scientific data among federal scientists, colleagues and the public. If passed, these bills could counter the goals of the ‘secret science’ EPA rule.

The Senate bill, introduced by Senator Bill Nelson (D-FL), would codify existing policies at some two dozen federal agencies. Those policies stem from a 2009 executive order from former President Barack Obama that required agencies to spell out how they would safeguard scientific integrity. Nelson’s bill has 30 Senate co-sponsors, all of them Democrats.

The House bill, penned by Representative Paul Tonko (D-NY), would require the director of the Office of Science and Technology Policy to draft policy supporting an “open exchange of data and findings” and preventing “the suppression or distortion of the data or findings.” It also asks the heads of agencies that fund science to institute policies that prevent political intervention in practicing science, disseminating results and making personnel decisions.

As is the case for both bills, there is significant Democratic support, but little from the Republican side of the aisle. Without bipartisan support, neither will likely gain ground. In turn, the EPA proposed rule, if approved, could stand unless these legislative efforts prevail.

If the rule is adopted by the EPA, organizations are likely to sue the EPA resulting in a legal battle that would delay or stop the rule’s implementation.

Appropriations: The House Appropriations subcommittees began working on Fiscal Year (FY) 2019 bills the week of May 7. This starts the lengthycongressional appropriations process to pass the FY 2019 bills that fund the federal government from Oct. 1, 2018-Sept. 30, 2019. The subcommittee appropriation bills will likely change, but they are important because they signal the intent of Congress. As was the case in FY 2018, Congress so far appears to be disregarding the president’s budget request that would cut funding across the federal agencies. 

Appropriators on the House Commerce, Justice and Science subcommittee included $8.2 billion for the National Science Foundation, $408 million above FY 2018 levels. NSF’s main research account would see an increase of 5 percent to $6.7 billion; its large facilities construction account would increase by 47 percent to $268 million; and, its education account would be maintained at $902 million.

In the same House bill, the National Oceanic and Atmospheric Administration receives $5.2 billion in funding, $751 million below FY 2018 levels. The bill reduces funding for climate change research by 40 percent and eliminates NOAA’s coastal resiliency grants. The National Aeronautics and Space Administration is funded at $21.5 billion, $810 million more than in FY 2018.

The House Energy and Water Appropriations Subcommittee approved an FY2019 bill that includes $6.6 billion for the Department of Energy Office of Science, $340 million above FY2018 levels. The bill also includes funding of $325 million for the Advanced Research Projects Agency (ARPA-E), $25 million less than FY 2018. The Trump administration has proposed eliminating ARPA-E in its FY 2019 budget request.

The House Department of Agriculture appropriations bill proposes $3.101 billion for research that includes the Agriculture Research Service, and the National Institute of Food and Agriculture. This is $72 million above FY 2018 levels.

Salmon & Hydropower Bill: The House passed a bill (H.R. 3144) April 25 that would negate a Ninth Circuit Court of Appeals decision that requiresoperators to allow more water to pass over four dams in the Columbia River basin to protect salmon and steelhead. Rep. Cathy McMorris Rodger (R-WA) introduced the legislation and led the effort for its passage. The Democratic governors of Oregon and Washington oppose the legislation, as do environmental groups. Similarly, the language in the FY 2019 House Energy and Water Appropriations bill requires the Army Corps of Engineers to revert to a 2017 fish management plan for the Columbia River, preventing the agency from spilling more water over the dams.

Endangered Species Act Provisions in FAA Bill: Two provisions nestledinside a House bill authorizing Federal Aviation Administration (FAA) activities weaken Endangered Species Act (ESA) protections. The bill’s first provision would bestow the secretary of transportation with authority to override aspects of the ESA on or near airport property that affect airport operations and security. Its second provision, inserted by Rep. Peter DeFazio (D-OR), establishes that private parties using the National Flood Insurance Program funds from the Federal Emergency Management Agency are not subject to ESA regulations. This amendment is a personal project for DeFazio- the congressman has inserted this language into several unrelated bills. The House passed the FAA bill with the amendments April 27. The Senate version of the FAA authorization bill does not include this language.

Innovations in Mentoring, Training and Apprenticeships Act: The House Science Committee approved the “Innovations in Mentoring, Training and Apprenticeships Act” (H.R. 5509) by voice vote April 17. This bill directs the National Science Foundation to support several new grant programs focused on mentoring, training and apprenticeships in STEM fields. Majority Leader Kevin McCarthy (R-CA) sponsored the bill, which is the committee’s latest effort to support STEM education programs and career pathways. Committee Chairman Lamar Smith (R-TX) said that the legislation began in a hearing the committee held in February that highlighted workforce development opportunities as tools to address skill shortages in the STEM workforce. The bill would build on existing NSF programs. For example, it would authorize more funding to community colleges to improve the quality of STEM associates degrees.

Bill Aims to Stop EPA Cuts: The “Healthy Environment for Children Act” (H.R. 5604) introduced by Rep. Don McEachin (D-VA) would prevent the EPA administrator from eliminating agency offices or activities related to scientific research that promote public health. Specifically, the bill would “prohibit any reduction, consolidation, or termination of offices and activities related to science research” within the EPA.

Defense Authorization Bill: Members of the House of Representatives have inserted some environmental policy riders into its annual defense authorization bill. One amendment, introduced by House Natural Resources Committee Chairman Rob Bishop (R-UT), bars the U.S. Fish and Wildlife Service from listing the greater-sage grouse or lesser prairie chicken under the Endangered Species Act for 10 years. This amendment passed out of committee. In past years, Senate Armed Services Committee Chairman John McCain (R-AZ) has prevented this provision from appearing in the final defense authorization legislation. Another provision would allow the Navy to request ten-year incidental take permits for their activities under the Marine Mammal Protection Act.

Sea Lion Hearing: The Senate Commerce, Science and Transportation Committee’s, Oceans, Atmosphere, Fisheries and Coast Guard Subcommittee, held a hearing April 25 concerning changes to the Marine Mammal Protection Act regarding how many California sea lions can be killed in the Pacific Northwest. Officials from Idaho, Oregon and Washington are interested in reducing sea lion numbers because the sea lions eat endangered salmon and steelhead. Currently, the Marine Mammal Protection Act permits the lethal removal of 92 sea lions per year, but critics say this limit is not enough. The bill under discussion, S. 1702, would allow statesand tribes to kill as many as 920 sea lions a year. Opponents of the bill say that amending the bill is unnecessary because states have not yet euthanized their allotted 92 sea lions a year.

Other legislative updates of interest:

• Commercial Engagement through Ocean Technology (CENOTE) Act of 2018 (S. 2511) – The Senate Commerce, Science and Transportation Committee approved this bill which directs NOAA to acquire and coordinate an unmanned ocean observing system program. The billalso directs NOAA to make data collected through this program publicly accessible.
• The Modernizing the Pittman-Robertson Fund for Tomorrow’s Needs Act of 2017 (H.R. 2591) passed out of the House Natural Resources Committee. It amends the Pittman-Robertson Wildlife Restoration Act to provide financial and technical assistance to state wildlife agencies to promote recreational hunting.
• The Driftnet Modernization and Bycatch Reduction Act (H.R. 5638 and S. 2773) – This bill aims to ban large-mesh driftnets in commercial fishing.
• Climate Change Education Act (H.R. 5606) – Introduced by Rep. Carol Shea-Porter (D-NH) and co-sponsored by 17 Democratic colleagues the bill would authorize NOAA to establish a climate change education program.
• Saving America’s Vulnerable and Endangered Species (SAVES) Act (S. 2778) – This bill, introduced by Sen. Ted Cruz (R-TX), amends the Endangered Species Act to prohibit living nonnative species from being listed as threatened or endangered.
• The Prohibiting Threatened and Endangered Creature Trophies Act of 2018  (H.R. 5690) amends the Endangered Species Act to prohibit taking domestic threatened or endangered species as a trophy and bans the importation of foreign endangered and threatened trophy species into the U.S.
• America’s Water Infrastructure Act (S. 2800) – Introduced by Senate Environment and Public Works Committee Chairman John Barrasso (R-WY) and ranking member Tom Carper (D-DE), this bipartisan bill revamps water infrastructure policy. The bill would localize the budget for the Army Corps of Engineers. Changes include requiring the Army Corps to present Congress with an annual work plan and a four-year project budget and requiring the Army Corps and the Bureau of Reclamation to develop sediment management plans.

Budget Rescissions: The White House sent $15 billion package of spending cuts to Congress May 8. Through the rescissions process, this package would reverse spending that Congress previously authorized. The recessions target unspent funds from prior fiscal years. Some cuts in funding would be seen in these agencies: $964 million to the Agriculture Department, including $144 million for the Environmental Quality Incentives Program; $16 million to the Forest Service contained in the Land and Water Conservation Fund for land acquisition; and $10 million to EPA water quality research and support grants.

House Majority Leader Kevin McCarthy (R-CA) released a House bill (H.R. 3) approving the cuts outlined in the rescission package. The House now must approve of the package through simple majority vote. 

NDD United, a coalition of groups including ESA, is supporting nondefense discretionary federal spending. It sent a letter to Members of Congress opposing rescissions.

Nominations and Personnel: The Senate confirmed former CIA Director Mike Pompeo as secretary of state. Pompeo has been critical of the Paris climate agreement and questions climate change science.

During a Senate hearing, Interior Secretary Ryan Zinke told lawmakers that is unlikely that directors will be appointed for the National Park Service, Bureau of Land Management and Fish and Wildlife Service until early 2019.

National Science Board Meeting: The National Science Board (NSB) met May 2-3. ESA Past President Jane Lubchenco accepted the Vannevar Bush Award for life-long achievement in public service in science. In her acceptance remarks, Lubchenco noted that, in our ‘post-truth’ society, it is more important now than ever for scientists to engage with society and demonstrate the value of science. The NSB also elected two new officers: Diane Souvaine, a Tufts University computer science professor, will serve as the board’s chair and Ellen Ochoa, a former astronaut who will retire as director of NASA’s Johnson Space Center in May, will serve as the vice-chair.

NSF Seismic Research Ship: The National Science Foundation (NSF) will sellits only seismic ship capable of imaging structures over the full crustal scale. The ship, the R/V Marcus G. Langseth requires a $13.5 million budget for operations, which is $3.5 million a year more than NSF was willing to provide for it. Marine seismologists have protested the decision because they will now be required to arrange their surveys from the private sector.

Clean Air Standards: The EPA issued a  that outlines changes to how national air quality standards under the Clean Air Act will be determined. Currently, the EPA sets clean air standards based on health and with the goal of protecting the most vulnerable populations in the U.S. The EPA memo proposes changing that standard to include weighing the economic costs of reaching standards.

Pruitt: Among other ethics scandals, the New York Times reported that Steven Hart, the lobbyist whose wife rented a DC condo to EPA Administrator Scott Pruitt for $50 a night, asked Pruitt for assistance with getting individuals appointed to the EPA’s Science Advisory Board. These individuals were nominated to the Science Advisory Board by Smithfield Foods, a client of Hart’s lobbying firm.

Red Wolves: The U.S. Fish and Wildlife Service (USFWS) released its five-yearreview and species status assessment for the red wolf population ineastern North Carolina April 24. The review shows that only about 40 wolves remain in eastern North Carolina and that habitat in the area will not support the population without significant human intervention. The agency vowed to continue its $1 million a year recovery efforts for the species and to continue recognizing the species as Canis rufus. North Carolina wildlife officials and some scientists dispute the red wolves’ status as a wolf subspecies and argue the animals are a gray wolf-coyote hybrids.

Greater Yellowstone Grizzly Bears: The USFWS will not restore endangered species protections to grizzly bears living in the area around Yellowstone National Park. An August 2017 court ruling overturning the USFWS decision to delist gray wolves in the Great Lakes region prompted the agency to revisit its July 2017 final rule delisting the greater Yellowstone ecosystem grizzly bear distinct population segment, based on the population’s increased numbers. Both Wyoming and Idaho are planning to hold limited public hunts of grizzly bears. Seventy-three scientists sent a letter to Wyoming Governor Matt Mead asking him to halt the state’s hunt until an independent panel can review bear population data, stating concerns that the government is overestimating the bear’s population.

Incidental Take Permits: An April 26 memo from USFWS Deputy Director Greg Sheehan to the agency’s regional directors advises that it is inappropriate for staff to tell landowners that it is ‘required’ to apply an Endangered Species Act Incidental Take Permit. Private parties, like real estate developers, apply for incidental take permits if they will harm threatened or endangered species in their activities.

Sage Grouse: The Interior Department released draft proposals to amend Obama-era greater sage-grouse conservation plans in seven western states May 2. The plans come after Interior Secretary Ryan Zinke opened a review of the sage-grouse conservation plans last summer. The Bureau of Land Management (BLM) is requesting public comments on all of the draft plans before Aug. 2, 2018.

Bighorn Sheep Habitat: The Interior Department proposed a 20-year extension of a federal mining ban to protect winter habitats for bighorn sheep. Under this proposal, more than 1,400 federal acres in the Whiskey Mountain Bighorn Sheep Winter Range in Western Wyoming would be exempt from mining claims through 2040.

Archaeologists Barred from Meeting: The BLM blocked at least 14 of its employees from attending a major archaeological conference, the annual meeting of the Society for American Archaeology. Only three agency archaeologists were approved to attend the conference. Officials in BLM’s headquarters cited “the potential travel and other costs.” This move comes at a time when managing archaeological sites has become a controversial part of public land management. The conference’s agenda contains sessions on Bears Ears National Monument and the Antiquities Act. The BLM archaeologists had planned to lead a session titled “Tough Issues in Land Management Archaeology.”

NPS Sea Level Rise Study: The Department of the Interior inspector general will investigate the National Park Service’s censorship of a scientific report. This investigation comes after an analysis by the Center for Investigative Reporting found that a career NPS official removed references to human’s role in climate change from a still unpublished report on sea level rise and its impacts to National Parks that was written by university scientists.

NASA: The National Aeronautics and Space Administration (NASA) has canceled the Carbon Monitoring System (CMS), a research program that remotely monitors carbon and methane. NASA stated the cancellation is due to “budget cuts and higher priorities.” Sen. Bill Nelson (D-FL), the ranking member of the Senate Commerce, Science and Transportation Committee, sent a letter to appropriators expressing “deep concern” over the program’s cancellation. 

Remote Sensing: Both USDA and USGS are considering charging for currently freely available remote-sensing images generated by the respective agencies. The Department of the Interior has asked an advisory panel to explore how charging for the popular Landsat data might affect users. The USDA is considering a plan to charge a fee for its aerial survey data, starting as soon as 2019.

Invasive Species in Florida: The Florida Fish and Wildlife Conservation Commission is considering an executive order to keep wildlife species designated as “Injurious” under the Lacey Act from being brought into its borders from other states within the continental U.S. An example of an “injurious species” is the Burmese python, an invasive species harming the Everglades. This discussion comes after the District of Columbia Circuit Court of Appeals,  ruled in April 2017 that the Lacey Act does not prohibit interstate transport of injurious species.

California: The California Environmental Protection Agency released 300+ page report detailing the impacts of climate change on the state including increased tree mortality, more severe wildfires seasons, smaller snow packs and warmer oceans. The report also detailed the state’s progress in reducing greenhouse gases. 

IPBES Call for Nominations, applications due in May: The Intergovernmental Platform on Biodiversity and Ecosystem Services (IPBES) has issued a call for expert nominations for two upcoming assessments 1) “A methodological assessment regarding the diverse conceptualization of multiple values of nature and its benefits and 2) “A thematic assessment of the sustainable use of wild species.” ESA is assisting the U.S. government in identifying U.S. experts and fellows (early career scientists, ideally no more than 5-7 years after terminal degree). Experts and fellows should have expertise in natural science, social science or the humanities, policy, and/or indigenous and local knowledge systems to participate. To learn more and apply by May 25, visit the ESA website.

Paris Agreement: International negotiators met in Bonn, Germany to finalize a “rulebook” for implementing the 2015 Paris climate agreement. This rulebook must be completed before U.N. climate talks in Poland in December 2018 and failure to deliver a rulebook would cast doubt on the process. A major question that the negotiators need to answer is how nations will be held accountable for meeting their Nationally Determined Contributions. During the meeting, negotiators hit a stalemate on issues of climate finance between developed and developing countries The U.N. Framework on Climate Change announced that it may meet again Sept. 3-8 in Bangkok.

EU Neonicotinoid Ban: The European Union has expanded bans on three neonicotinoid pesticides (clothianidin, imidacloprid and thiamethoxam), due to their harmful effects on crucial pollinators. The pesticides were banned in 2013 for use on flowering plants, but will now be prohibited from use on all field crops.

Canada: Federal, territorial and indigenous governments in Canada all say they will oppose the latest attempt to open the Alaska National Wildlife Refuge for oil drilling on the basis that it would harm migratory caribou. The Porcupine caribou herd is protected under a U.S.-Canada agreement. The herd spends most of its time in Canada’s Northwest Territories, but breeds in Alaska including in areas that may be opened for drilling.

Australia: Leaked documents show that the biodiversity and conservation division of Australia’s federal Department of the Environment and Energy will lose 25 percent of its budget and a third of its staff in the next financial year. The biodiversity and conservation division is responsible for managing the country’s threatened species.

Public Meetings: 

• BLM – Meeting of the Alaska Resource Advisory Council (May 16-17)
• BLM – Meeting of the Utah Resource Advisory Council/Recreation Advisory Council (May 21-22)
• NASA – Earth Science Advisory Committee Meeting (May 29, conference call)
• NASA -Applied Sciences Advisory Committee Meeting (June 5-6)
• EPA – Environmental Modeling Public Meeting (May 23)
• EPA – Public Meeting of the Chartered Science Advisory Board (May 31 – June 1)
• NOAA NMFS – Meetings on Programmatic Environmental Impact Statement for the Marine Mammal Health and Stranding Response Program (Webinars on May 15 and May 21; In person meeting in Silver Spring, MD May 18).
• NOAA NMFS – Gulf of Mexico Fishery Management Council Public Meetings (May 7 – June 6)
• NOAA Office of Ocean Exploration and Research – Public Meeting of the Ocean Exploration Advisory Board(May 16-17)
• NSF – Advisory Committee for International Science and EngineeringMeeting (May 24)
• NSF – Meeting of the Committee on Equal Opportunities in Science and Engineering (May 30-31)
• NSF – Advisory Committee for Education and Human Resources Meeting (May 31)

Opportunities for Public Comment:

• BLM – Call for Nominations for the National Wild Horse and Burro Advisory Board. Nominations due by May 29, 2018.
• BLM – Call for Nominations, North Slope Science Initiative, Science Technical Advisory Panel, Alaska. Nominations due by May 29, 2018.
• BLM – National Call for Nominations for Resource and Monument Advisory Councils. Nominations due June 4, 2018.
• BLM – Notice of Intent To Prepare an Environmental Impact Statement for the Coastal Plain Oil and Gas Leasing Program, Alaska. Comments due by June 19, 2018.
• BOEM – Outer Continental Shelf, Alaska OCS Region, Beaufort Sea, Proposed Oil and Gas Lease Sale for 2019. Comment period reopened, comment period closes May 30, 2018.
• U.S. Army Corps of Engineers – Intent to Prepare an Environmental Impact Statement for the Pebble Project. Public comments due by June 29, 2018.
• EPA-Clean Water Act Coverage of Discharges of Pollutants. Comment due by May 21, 2018.
• EPA – Biological Opinion on Pesticide Effects on Threatened or Endangered Species. Submit comments by May 22, 2018.
• EPA – Strengthening Transparency in Regulatory Science. Submit comments by May 30, 2018.
• State Department — 60-Day Notice of Proposed Information Collection: Application for Nonimmigrant Visa. Comments due May 29, 2018.
• USFWS – Regulations for Managing Resident Canada Goose Populations. Comments on this proposed rule must be received by May 25, 2018.
• USFWS- Proposed Rule to Reclassify the Hawaiian Goose from Endangered to Threatened under the Endangered Species Act. Submit comments by June 1.
• USFWS – Draft Recovery Plan for Four Invertebrate Species of the Pecos River Valley  Submit comments by June 1.
• USFWS – Endangered Species Act Draft Recovery Plan for the Cumberland Darter. Public comments close June 4, 2018.
• USFWS – Endangered Status for the Island Marble Butterfly and Designation of Critical Habitat. USFWS will accept comments received or postmarked on or before June 11, 2018.
• USFWS – Initiation of 5-Year Status Reviews of Five Listed Animal Species (Dakota skipper, Higgins’ eye pearlymussel, Hine’s emerald dragonfly, Niangua darter and Poweshiek skipperling). Information and comments due June 25, 2018.
• USFWS – Endangered and Threatened Wildlife and Plants; 90-Day Findings for Two Species. U.S. Fish and Wildlife Service is seeking information on the status and threats to the Cape mountain zebra (South Africa)