Environmental Protection Agency head Andrew Wheeler announced a final rule today (January 5) that will impose new restrictions on how studies are weighed in formulating the agency’s regulations. While Wheeler and other proponents of the change say the rule ensures the public can access the data that undergird regulatory decisions, critics say it would shield polluters by limiting the consideration of studies that rely on confidential medical information. Such studies investigating the health effects of pollutants on human populations have formed the basis of major environmental regulations in the past.

“This really seems to be an attempt by Wheeler to permanently let major polluters trample on public health,” Benjamin Levitan, a senior attorney with the Environmental Defense Fund, tells the Associated Press. “It ties the hands of future administrations in how they can protect the public health.”

The change has been in the works since 2018, but The New York Times reports that the idea of targeting “secret science” in order to present hurdles to enacting new regulations dates back to a strategy proposed in the 1990s to protect tobacco companies. Former Representative Lamar Smith (R-TX) later championed two bills to effect a policy similar to the EPA’s new rule. Each passed in the US House, most recently in 2017, but died in the Senate. Three years ago, he began working with then-EPA administrator Scott Pruitt to craft the “transparency” rule.

The original draft rule pertained only to dose-response studies, which connect the amount of a toxin to its effects, but it was later broadened to include other types of studies as well. The final rule has again been narrowed, and mandates that the EPA “will give greater consideration to studies where the underlying dose-response data are available in a manner sufficient for independent validation.” 

“Dose-response data explain the relationship between the amount of a chemical or a pollutant and its effect on human health and the environment—and are at the foundation of EPA’s regulations,” Wheeler wrote in an opinion article in The Wall Street Journal published yesterday. “If the American people are to be regulated by interpretation of these scientific studies, they deserve to scrutinize the data as part of the scientific process and American self-government.”

Critics say that the rule would have precluded EPA regulations that are key to protecting public health but were formulated based on studies whose data were not publicly available. The new rule is not retroactive, but could come into play if existing regulations come up for renewal. In a statement, Sudip Parikh, who heads the American Association for the Advancement of Science, says that AAAS, “along with the vast majority of scientific, higher education, medical and public health communities, strongly opposes the final rule because it severely undermines the use of science in making informed decisions.” 

See “EPA Science Board Criticizes Proposed Regulatory Rollbacks

“Right now we’re in the grips of a serious public health crisis due to a deadly respiratory virus, and there’s evidence showing that air pollution exposure increases the risk of worse outcomes,” Mary Rice, a physician and chairwoman of the environmental health policy committee at the American Thoracic Society, tells the Times. “We would want E.P.A. going forward to make decisions about air quality using all available evidence, not just putting arbitrary limits on what it will consider.”

In his announcement of the rule today, made in an online forum hosted by the conservative Competitive Enterprise Institute, Wheeler blamed “misreporting in the press” for the controversy around the rule, which he said does not prohibit the EPA from considering any research. He said the rule will give priority consideration to studies with underlying data either publicly available or “available through restricted access,” and that it will “support the best science and strengthen the legal defense of our rule-making.”

Andrew Rosenberg, the director of the Center for Science and Democracy at the Union of Concerned Scientists, had a different take on the measure. “That EPA leadership has overruled the input of the scientific community, the voices of environmental justice advocates and simple common sense to push this rule is beyond disappointing,” he writes in a statement sent to The Scientist. “It’s a deliberate refusal to protect people’s lives.”

The rule could potentially be overturned by President-Elect Joe Biden’s administration, but doing so could take months, The Washington Post notes.