By Andy May
The EPA secretary, Scott Pruitt, testified before the House of Representatives Energy and Commerce Committee on Thursday April 26, 2018. He had been charged with spending too much money on travel, security and a secure phone booth for his office. Certainly, a reason to reprimand him, but I’m not sure a full day of Congressional hearings were warranted. Besides Scott Pruitt has spent far less on travel than either of his immediate predecessors at the EPA. Scott Pruitt said the following at the hearing:
“I promise you that I more than anyone want to establish the hard facts and provide answers to questions surrounding these reports. Let me be very clear, I have nothing to hide as it relates to how I have run the agency for the past 16 months. I’m not afraid to admit that there has been a learning process. When Congress or independent bodies find fault in our decision-making, I want to correct that and ensure that it does not happen again. Ultimately, as administrator of the EPA, the responsibility for making necessary changes rests with me and no one else.
With that being said, facts are facts and fiction is fiction. And a lie doesn’t become truth just because it appears on the front page of a newspaper. Much of what has been targeted toward me and my team has been half-truths or at best stories so twisted they do not represent reality.”
The hearings were more likely due to Pruitt’s efforts to rein in the EPA’s recent efforts to limit private property rights for the “greater good.” When a government official begins talking about the “greater good” grab your wallet and hide your children because they are about to steal something from someone or do something far worse. Representative David B. McKinley, Republican of West Virginia, told Mr. Pruitt during the hearing that the attacks on him “have an echo of McCarthyism.” That is using his, possibly misguided but trivial infractions, as a club to extort a change in his policies. Rules, regulations and laws can be used for nefarious ends.
We see in the March 16, 2018 Scientific American that Scott “Pruitt Expected to Limit Science Used to Make EPA Pollution Rules.” OMG, those darned knuckle-dragging, anti-science Republicans are at it again! Denying science and polluting the environment. What horrors are they contemplating now?
A little farther in we read this:
“[Pruitt’s] initiative is expected to require EPA—when issuing rules—to rely only on scientific studies where the underlying data are made public. It’s an idea that House Science, Space and Technology Chairman Lamar Smith (R-Texas) has been championing for years. He and others argue that EPA has been crafting regulations based on “secret science” to advance its regulatory agenda.” (Waldman and Bravender 2018)
Lamar Smith’s “HONEST” act “requires that Environmental Protection Agency (EPA) regulations be based upon science that is publicly available” according to the House committee of Science, Space and Technology here. The acronym HONEST stands for “Honest and Open New EPA Science Treatment.” Under the act (which has passed the House, but not the Senate), if the EPA is going to restrict someone’s private property rights for the “greater good” they must release all the data and analysis used to justify the regulations. Just as, in court before a person is sent to jail or fined, they can examine all the evidence against them. Lamar Smith and Scott Pruitt simply want people to see the data and evidence used to create the regulations that restrict their private property rights. They are not “limiting the science used,” they are just insisting on full public disclosure of the data and analysis. How is this unreasonable?
The U.S. Constitution contains many protections for private property. Article I, section 8 secures intellectual property. Sections 9 and 10 prohibit states and the federal government from passing ex post facto laws that change existing contracts. The fifth amendment prohibits the taking of property by the government without just compensation. The second amendment prohibits confiscation of arms, the third prohibits forced quartering of troops in private homes, and the fourth and fourteenth forbid unreasonable searches and seizures of private property. These protections of private property rights were all in response to common actions by the British prior to U.S. independence.
The EPA has skirted the edge of these Constitutional prohibitions many times, have they gone over the edge? The EPA writes regulations on its own, under the President’s authority, without other oversight. The regulations have to be rooted in a Congressional statute, but the statutes are only interpreted by the EPA. This has allowed regulatory excesses like the CO2 “endangerment” finding. This gives the agency great power. There are many modern ways to restrict private property rights. These include building codes, rent controls, zoning, usury laws, price controls, blue laws, gun controls, etc. Environmental regulations can be the most egregious. The restrictions and regulations can be so burdensome that the land is rendered useless and effectively taken away. This was at the root of complaints against the Waters of the U.S. Act and other environmental and land-use regulations. The following is from a House of Representatives transportation and infrastructure committee report on the EPA attempt to expand the Waters of the U.S. act under the Obama administration (see here for the full report):
“… granting sweeping new federal jurisdiction to waters never intended for regulation under the Clean Water Act, including ditches, man-made ponds, floodplains, riparian areas, and seasonally-wet areas.
This expansion of federal regulatory power also could have serious consequences for the Nation’s economy, threaten jobs, invite costly litigation, and significantly restrict the ability of landowners to make decisions about their property and the rights of state and local governments to plan for their own development.
These actions are yet another example of a disturbing pattern of an imperial presidency that seeks to use brute force and executive action while ignoring Congress.
Regulation must be balanced in a manner that responsibly protects the environment and recognizes the rights of states and individuals, without an unnecessary and costly expansion of the federal government and unreasonable and burdensome regulations on our small businesses, farmers, and families.”
The EPA is charged with protecting the environment in the United States. Their mandate is to use regulations and restrictions on the use of private property so that one property owner does not endanger the water, land or air for all the people around them. This is reasonable, if the actions of the property owner are truly causing dangerous pollution. But, there is a danger of abuse of this power. Private property rights are as fundamental to our freedom as free speech and a free press. Thus, if the EPA takes away a person’s rights, they have a duty to explain why and present all the evidence to the public. Further, every regulation has a cost and these costs diminish our standard of living and can take away jobs. Every regulation needs a justification.
There are many measures of freedom, but one is certainly the strength of a countries’ private property rights. Or, put another way, how easy is it for the state to take away private property or render it unusable by the owner? This can be thought of as the inverse of how socialistic a country is, since the lack of private property defines socialism according to Merriam-Webster (this is part of their definition, for the full definition see here):
“Socialism: Any of various economic and political theories advocating collective or governmental ownership and administration of the means of production and distribution of goods. A system of society or group living in which there is no private property.” Merriam-Webster Dictionary.
Property rights are tabulated for countries around the world by the Heritage Foundation and the rankings are listed here. Another source is the International Property Rights Index here. Out of 183 countries, Venezuela is listed last, which isn’t surprising. Singapore has the strongest property rights, followed by New Zealand, Hong Kong, the UK, Finland and Japan in the Heritage Foundation list. New Zealand is listed first by the International Property Rights Index. The United States is ranked 24th by the Heritage Foundation and 14th by the International Property Rights Index. It is interesting that the “Democratic Socialist” countries of Sweden, Denmark, the Netherlands, and Norway all have stronger private property rights than the United States. That is, they are less socialistic.
The Scientific American complaints
The critics of Lamar Smith and Scott Pruitt see the ban on using secret data to issue regulations as an effort to hinder the EPA from issuing rules. According to Yogin Kothari of the Union of Concerned Scientists in the Scientific American article cited above:
“A lot of the data that EPA uses to protect public health and ensure that we have clean air and clean water relies on data that cannot be publicly released,” said Yogin Kothari with the Union of Concerned Scientists.
Many scientific studies rely on data that can’t be made public for reasons like patient privacy concerns or industry confidentiality.
“If EPA doesn’t have data to move forward with a public protection for a safeguard, it doesn’t have to do that at all,” said Kothari. “It really hamstrings the ability of the EPA to do anything, to fulfill its mission.”
Publishing raw data also opens scientists up to attacks from industry, which can twist or distort data to shape a deregulatory agenda, said Betsy Southerland, a former senior EPA official in the Office of Water who worked on a staff analysis of the “HONEST Act.” (Waldman and Bravender 2018)
These arguments all sound very weak and boil down to “trust the EPA, they would never do anything wrong.” We can all understand that patient names cannot be released, but anonymous patient data is released all the time by the CDC and this is all Scott Pruitt is suggesting. The industries affected by EPA regulations should be allowed to examine the data and draw and report their own conclusions. If the EPA can slant or spin (“twist and distort”) the data to make their case, the industries affected should certainly be given the same rights, argument is a founding principle of the United States. No one should assume the EPA is always right and the businesses they regulate always wrong, honest and open debate is needed here. Businesses (or “industry” if you prefer) make all the money we have, all the money the EPA has, and all the money the government has. Every regulation has a cost. That cost reduces everyone’s income. Rules and regulations matter and should not be made willy-nilly or at an unelected bureaucrat’s whim. They should only be implemented when fully justified to the businesses being regulated and the public at large.
The article continues with this complaint:
[Betsy Southerland, an ex-EPA employee] “said there are numerous examples of groundbreaking studies that are not replicable, such as human health studies after the dropping of atomic bombs in Hiroshima or the ecological effects of the BP PLC Gulf of Mexico oil spill. In many of the older studies, there are a plethora of people, including some who are dead, who could no longer be tracked down.
“This is just done to paralyze rulemaking,” she said. “It’s another obstacle that would make it so hard and so difficult to go forward with rulemaking that in the end, the only thing that would happen—in the best case you would greatly delay rulemaking; in the worst case you would just prevent it. It would be such an obstacle you couldn’t overcome it.” (Waldman and Bravender 2018)
Pruitt’s new regulations do not have to require recovery of the data from past studies. Although I suspect that a diligent search for the data from the Hiroshima studies would uncover most of it. As for the BP oil spill, the Woods Hole Oceanographic Institute reports that natural oil seeps on the ocean floor supply as much as half of the crude oil found in the ocean (Woods Hole Oceanographic Institution 2018). Studying the area around these seeps can provide data on the long-term effects of crude oil and natural gas on the environment. As for the short-term effects of the BP spill, I doubt any of that data has been lost, given the court cases. In any case, rulemaking that restricts private property rights, should be difficult. After all, private property rights are one of our most cherished Constitutional rights and the cost of the rules is very large.
One of the most amusing and shocking complaints was this one:
“Requiring data transparency would cost hundreds of millions of dollars because it would require EPA staff to track down data from study authors and create an online management system to store and present those data, the analysis found. In addition, EPA staff would have to spend time redacting personally identifiable information in the studies, and study authors would likely require payments for preparing and sending their data.” (Waldman and Bravender 2018)
Are they really saying that they do not have a repository for the data from scientific studies used to make the regulations? Are they saying they have not reviewed the data from studies that they used to restrict citizen’s rights and possibly endanger their businesses? Did they just read the studies, accept the results without any further research and write the regulations? Are they really that cavalier about it? It would seem so. One of the best things about Trump becoming President is that we now have a much fuller picture of government incompetence and malfeasance.
Conclusions
Probably most people agree that there should be some restrictions on private property rights to protect the environment we live in. I suspect that most people also agree that private property rights should not be taken away from anyone unless the EPA makes a sound scientific case for doing so. It appears the law is silent on the subject, which is an oversight that should be corrected. The HONEST act appears to be a good start. A nameless, faceless bureaucrat should not be allowed to arbitrarily say that a land owner must stop what he is doing on his land without providing justification. If that justification is based upon a research project, the data and analysis used to justify the regulation must be made public before taking away the land owner’s rights.
It is the land owner’s right, as well as the right of any business, corporation or group to review the data and analysis and try to replicate the result. We live in an age when many scientific studies cannot be replicated and when scientific research contains considerable political bias. The only way to be sure that a studies results are valid is to independently duplicate the project. No less an authority than the journal Nature, probably the premier scientific journal in the world, has made this point:
“An inherent principle of publication is that others should be able to replicate and build upon the authors’ published claims. A condition of publication in a Nature Research journal is that authors are required to make materials, data, code, and associated protocols promptly available to readers without undue qualifications. Any restrictions on the availability of materials or information must be disclosed to the editors at the time of submission. Any restrictions must also be disclosed in the submitted manuscript.
After publication, readers who encounter refusal by the authors to comply with these policies should contact the chief editor of the journal. In cases where editors are unable to resolve a complaint, the journal may refer the matter to the authors’ funding institution and/or publish a formal statement of correction, attached online to the publication, stating that readers have been unable to obtain necessary materials to replicate the findings.” (Nature.com 2018)
Link.
The bold emphasis is in the original. Some readers will remember the difficulty McIntyre and McKitrick had in getting the data used for Michael Mann’s “hockey stick” (Mann, Bradley and Hughes 1998). Once they received the data from Michael Mann and published their analysis of it in Energy & Environment (McIntyre and McKitrick 2003), the Nature editors ordered Mann, et al. to publish a correction and restatement of their paper (McKitrick 2018). The EPA should adopt a similar policy in the opinion of this author. The Royal Society’s motto is nullius in verba which means take nobody’s word for it. This is certainly applicable to any scientific study used to take someone’s private property rights.
In a famous peer-reviewed study published in Science (Open Science Collaboration 2015) it was found that only a third to a half of the papers published in 2008 in the top three psychology journals could be replicated. If this is true of the scientific work done at the EPA then half or more of their regulations, that have a real economic impact on land owners and businesses in the United States, may not be based on sound science. But, we cannot know if this is true, since the data and the studies are kept secret. It is interesting that the Science paper’s opening words are:
“Reproducibility is a defining feature of science, but the extent to which it characterizes current research is unknown. Scientific claims should not gain credence because of the status or authority of their originator but by the replicability of their supporting evidence.” Link.
This is a good way of putting it. Reproducibility is not part of the definition of science, but it certainly is a “defining feature” of science. No matter how brilliant the scientific work might be, if it can’t be replicated by someone else, it’s useless and of little value. Thus, for the scientific work to matter and have value, the “materials, data, code, and associated protocols [must] promptly [be made] available to [the public] without undue qualifications.”
If Scientific American, EPA bureaucrats and the Washington DC swamp want to take issue with Science and Nature on the necessity of reproducibility in science, have at it, but they will lose. The very idea of “secret science” is an oxymoron in our opinion as well as being very unfair to land owners, farmers, ranchers and business owners.
Andy May has just published his first book: “Climate Catastrophe! Science or Science Fiction?” It is available from Amazon.com and barnesandnoble.com.
Works Cited
Mann, Michael E., Raymond S. Bradley, and Malcolm K. Hughes. 1998. “Global-scale temperature patterns and climate forcing over the past six centuries.” Nature 392: 779-787. https://www.nature.com/articles/33859.
McIntyre, Stephen, and Ross McKitrick. 2003. “Corrections to the Mann et. al. (1998) Proxy Data Base and Northern Hemispheric Average Temperature Series.” Energy & Environment 14 (6). http://journals.sagepub.com/doi/abs/10.1260/095830503322793632.
McIntyre, Stephen, and Ross McKitrick. 2005. “Hockey sticks, principal components, and spurious significance.” GEOPHYSICAL RESEARCH LETTERS 32. http://www.climateaudit.info/pdf/mcintyre.mckitrick.2005.grl.pdf.
McKitrick, Ross. 2018. “Statement of Ross McKitrick.” https://www.rossmckitrick.com/uploads/4/8/0/8/4808045/nyc_lawsuit0.pdf.
Nature.com. 2018. “Availability of data, material and methods.” Nature. https://www.nature.com/authors/policies/availability.html.
Open Science Collaboration. 2015. “Estimating the reproducibility of psychological science.” Science 349 (6251). http://science.sciencemag.org/content/349/6251/aac4716.
Waldman, Scott, and Robin Bravender. 2018. “Pruitt Expected to Limit Science Used to Make EPA Pollution Rules.” Scientific American, March 16. https://www.scientificamerican.com/article/pruitt-expected-to-limit-science-used-to-make-epa-pollution-rules/.
Woods Hole Oceanographic Institution. 2018. Oil in the Ocean. http://www.whoi.edu/oil/natural-oil-seeps.
