EPA Transparency and the Deep State

By Duggan Flanakin

Ballot harvesting, behind-the-curtains ballot counting and other hijinks have made transparency a critical issue this election year.

Meanwhile, as the U.S. Environmental Protection Agency celebrates its fiftieth birthday, political battles continue to rage over the extent of public, executive and congressional oversight, and access to research files, original data and other information used by the agency in taking legal actions against individuals, institutions and businesses. The latest salvos involve the first-ever “transparency” requirements for EPA guidance documents – requirements likely to be tossed out by a Biden Administration.

In October 2019, President Trump signed an executive order to curb what he called abuses of authority by unaccountable bureaucrats who were “imposing their private agendas” on Americans. “A permanent federal bureaucracy,” he observed, “cannot become a fourth branch of government unanswerable to American voters.” Nor should federal agencies be able to impose multi-billion-dollar regulations, while claiming studies used to justify them are proprietary, confidential or otherwise inaccessible.

This February, the EPA launched a new searchable portal to provide public access to agency guidance documents. When it was finalized in July, the EPA brought over 9,000 guidance documents out of the darkness and made the entire active guidance library available to the public for the first time.

In September, the EPA finalized a rule that significantly increases the transparency of guidance practices and amends the agency’s process for managing guidance documents. The rule establishes the first formal public petition process for asking the EPA to modify, withdraw or reinstate a guidance document.

You would think “transparency” would be universally practiced and praised. However, the Deep State, science establishment, activist and pressure groups, and Democratic Party politicians have been horrified. Some claimed the rule reveals and distorts EPA’s decision-making processes. Others said it risks exposing private medical data and other confidential information. Still others carped that the rule is a bad-faith ploy to hamstring the agency’s ability to regulate industries and individuals.

Indeed, last October, an unsigned article in Wired magazine (we can’t even have author transparency) claimed the regulation was a Zombie-like attempt to resurrect the Secret Science Reform Act. Horrors!

The proposed legislation merely attempted to end the EPA’s widespread practice of basing regulations and guidance on research whose details remain hidden behind confidentiality agreements and are not publicly accessible, and whose research data cannot be replicated or independently verified.

During Congressional hearings on the proposal, critics claimed transparency would force the EPA to exclude important studies to protect confidentiality agreements. FactCheck.org found that private data sometimes cannot be redacted. But it also acknowledged that the rule allows the EPA administrator to exempt regulations if releasing study data publicly (rarely) does conflict with protecting privacy. It also allows for alternatives to complete public release if the data actually include confidential information.

One of the most scandalous cases of regulatory secrecy (and presidential secrecy) involved the acid rain provisions of the 1990 Clean Air Act Amendments. President Bush and the EPA suppressed the findings of the 10-year, $537 million National Acid Rain Assessment Program (NAPAP), which had been authorized by President Carter.

To gain public support for the legislation, EPA scientists conjured up scary scenarios, claiming that sulfur dioxide emissions from coal-fired power plants combined with water in the air to form acid rain that polluted streams, lakes and rivers and damaged trees, wildlife and buildings. The NAPAP found that the acidity of a lake is determined as much (or more) by the acidity of local soil and vegetation as it is by acidic rain. The frightening scenarios were wildly exaggerated, to justify closing power plants.

Moreover, many of these lakes were historically acidic and fishless until around 1900, when logging removed the acid vegetation and made the soil slightly alkaline. After logging slowed to a halt (around 1915), the naturally acidic decaying vegetation built up again, and the lakes became acidic again. In many cases forests were also debilitated due to insects or drought – not acid rain.

Curiously, a 1991 paper by environmental law scholar Richard Lazarus argued that Congress should let EPA be more independent, while admitting that legislators and regulators alike “have rarely known the best way to respond to an environmental pollution problem at the time a statute was passed.” Lazarus further claimed, “Statutory prescription therefore is an especially risky endeavor [that] can lead to wasteful expenditures for pollution control and … to more, rather than less, environmental degradation.”

These realities, Lazarus argued, make congressional oversight problematical, especially because the scientific options proposed by regulators for solving pollution often conflict with the political interests of lawmakers. True. But what if the legislators’ science is corrupted by “dark money” and the perpetual quest for more agency funding? Or if the regulators’ science is corrupted or weaponized by White House or Deep State biases, agendas, censoring of certain views, or manipulation or fabrication of data?

(In a republic, at least theoretically, the political leadership is informed by a citizenry that has all the needed facts, and ultimately has the authority to decide whether or not to follow the particular scientific pathways favored by regulators. In a pure democracy, minority views can be deemed or made irrelevant.)

A 2018 CFACT report assessed the extent of the public information problem, noting that EPA regulations have the force of law and constitute 25% of all federal regulations. Congress often grants regulatory bodies immense power over how people and businesses may operate, without giving targeted entities even the same level of due process that the law affords to criminal defendants. We should expect that EPA expands these overly broad mandates even further.

Indeed, the CFACT report contends, federal bureaucrats, and EPA administrators in particular, determine “who gets a permit to operate, and who does not; what technologies a business must use; what lightbulbs are available for your homes; what gas we can buy; what chemicals can be used; where companies can mine; what local land use decisions will survive; and even where a pond can be built on private property.”

It concluded: “While the President has massive powers over war and peace, and sets the operating philosophy of federal agencies, the EPA Administrator has direct power over the business operations … and thus the economy … of the entire nation.”

In creating the Consumer Finance Protection Bureau in 2010, the Democrat-controlled Congress gave its director broad powers and virtual immunity from political scrutiny – with more power than the President. The Supreme Court only narrowly recognized this as an unconstitutional grant of power to an unelected official. The EPA Administrator’s powers should be equally restrained.

In a second October 2019 executive order, President Trump required that agencies inform individuals of regulatory cases against them, acknowledge their responses, and educate businesses about new regulatory impacts. This order too should be non-controversial, but could well be axed by a President Biden.

Under current law, those whose livelihoods are assaulted by regulatory bodies can challenge an agency in court only after the agency has sullied their reputations and prosecuted their alleged noncompliance. Even then, the environmental defendant typically loses, because courts have mostly upheld the agencies if their decisions are “rational,” even if (absent long-sought transparency) the agency has concealed any or all of its “public” (but secret) data and records that do not support its “reasoning.”

Ultimately, the future of EPA transparency (and openness in all government) rides on the final outcome of the 2020 Presidential election. It’s fascinating how entities that set arbitrary and ever-changing standards for “acceptable” speech, favor crude protests over peaceful assemblies, and seek to curtail entire industries – also see no reason to inform the public of the rationale behind their politicized “scientific” decisions on issues from climate change to COVID to all manner of environmental regulation.

Via email

 

Environmentalist fraud and manslaughter

In the name of banning DDT, GEF bureaucrats are consigning millions to death from malaria

Paul Driessen is a senior fellow with the Committee For A Constructive Tomorrow and Center for the Defense of Free Enterprise, nonprofit public policy institutes that focus on energy, the environment, economic development and international affairs. Paul Driessen is author of Eco-Imperialism: Green power, Black death.

Editor's Note:  This was origianlly published on 3/2/11

 

By Paul Driessen

Many chemotherapy drugs for treating cancer have highly unpleasant side effects—hair loss, vomiting, intense joint pain, liver damage and fetal defects, to name just a few. But anyone trying to ban the drugs would be tarred, feathered and run out of town. And rightly so.

The drugs’ benefits vastly outweigh their risks. They save lives. We need to use chemo drugs carefully, but we need to use them.

The same commonsense reasoning

The same commonsense reasoning should apply to the Third World equivalent of chemotherapy drugs: DDT and other insecticides to combat malaria. Up to half a billion people are infected annually by this vicious disease, nearly a million die, countless survivors are left with permanent brain damage, and 90% of this carnage is in sub-Saharan Africa, the most impoverished region on Earth.

These chemicals don’t cure malaria—they prevent it. Used properly, they are effective, and safe. DDT is particularly important. Sprayed once or twice a year on the inside walls of homes, DDT keeps 80% of mosquitoes from entering, irritates those that do enter, so they leave without biting, and kills any that land. No other chemical, at any price, can do this.

Even better, DDT has few adverse side effects—except minor, speculative and imaginary “risks” that are trumpeted on anti-pesticide websites. In the interest of saving lives, one would think eco activists would tone down their “ban DDT” disinformation. However, that is unlikely.

Anti-DDT fanaticism built the environmental movement, and gave it funding, power and stature it never had before. No matter how many people get sick and die because health agencies are pressured not to use DDT, or it is totally banned, Environmental Defense, Sierra Club, Greenpeace, Pesticide Action Network, and allied activist groups will never reform or recant.

Government agencies—including the US Environmental Protection Agency, National Institutes of Environmental Health Sciences, and Agency for Toxic Substances and Diseases Registry—will likewise continue pouring hundreds of millions of taxpayer dollars into anti-DDT research, in futile attempts to prove DDT causes some sort of meaningful harm. And the malaria death toll will continue to mount.

Worse, they have now been joined by the United Nations Environment Program, Global Environment Facility and even World Health Organization Environmental Division—all of whom share the avowed goal of ending all DDT production by 2017, and banning all use of DDT in disease control by 2020.

A recent GEF “study” demonstrates how far they are willing to go, to achieve this goal, no matter how deadly it might be. The study purported to prove DDT is no longer needed and can be replaced by “integrated and environment-friendly” alternatives: for example, mosquito-repelling trees, and non-chemical control of breeding sites and areas around homes that shelter insects.

The $14-million study claimed that these interventions resulted in an unprecedented “63% reduction in the number of people with [malaria], without using DDT or any other type of pesticide.” However, as analyses by malaria and insecticide experts Richard Tren and Dr. Donald Roberts clearly demonstrate  (see Research and Reports  in Tropical Medicine and AEI Outlooks), the study, conclusions and policy recommendations are not merely wrong. They are deliberately misleading and fraudulent.

GEF did its 2003-2008 study in Mexico and seven Central American countries—all of which had largely ceased using DDT and other pesticides years before the GEF project. Instead of chemical sprays, these countries now employ huge numbers of chloroquine and primaquine (CQ and PQ) pills to prevent and treat malaria: 2,566 pills per diagnosed case in Mexico; 22,802 pills (!) in El Salvador; 50 to 1,319 pills per case in the other countries, according to 2004 health records.

It was these powerful drugs, not the “environment-friendly” GEF interventions, that slashed malaria rates. Indeed, they had begun to do so before GEF even arrived. This terribly inconvenient reality was further underscored by the fact that malaria rates were the same in “study” areas and “control” areas, where GEF did nothing—and that the number of malaria cases increased when the number of pills per case decreased. In other words, GEF could have gotten its same results using one bed net or one larvae-eating fish.

GEF’s fraudulent claims were then compounded by its insistence that the results and conclusions are relevant to other malaria-endemic regions. They are not. Malaria parasites in Latin American countries are Plasmodium vivax; in Africa and Southeast Asia, they are the far more virulent P. falciparum.

CQ and PQ are effective in preventing and treating vivax; they rarely prevent or cure falciparum malaria. Moreover, the eight Latin American countries have 140 million people. Sub-Saharan Africa has 800 million and a woeful medical and transportation infrastructure; Southeast Asia has 600 million people. Both have infinitely more malaria. Getting adequate medicines that work (far more expensive Artemisia-based ACT drugs) to 1.4 billion people would be a budgetary, logistical and medical impossibility.

But apparently none of these facts occurred to the bureaucrats who did this study. That’s hardly surprising, since the project was designed and directed, not by disease control experts, but by the UNEP and radical environmental groups—which also spent millions distributing and promoting the study and other anti-DDT propaganda all over the world, ensuring that they received substantial media attention.

Anti-pesticide fanatics know this “study” is fraudulent. They just have a very high tolerance for how many malaria cases, brain-damaged people and dead babies are “acceptable” or “sustainable.” They just don’t care enough to bother learning basic facts about malaria, CQ versus ACT, vivax versus falciparum. They need to get out of the malaria control policy business and let medical professionals do their jobs.

(To learn more about stopping malaria, see Tren and Roberts’ book The Excellent Powder, Dr. Rutledge Taylor’s documentary film “3 Billion and Counting,” and the website for Africa Fighting Malaria.)

The final report claims its authors submitted manuscripts to prominent peer-reviewed medical journals. However, nothing was ever published. That suggests that they lied, and never submitted any manuscripts; or they did submit papers, but the manuscripts were rejected as being shoddy, unprofessional, unscientific, or even on par with Andrew Wakefield’s fraudulent vaccine-and-autism work.

To cap it all off, the bogus GEF project appears to have been conducted using funds diverted from already insufficient malaria control budgets. The GEF, UNEP, Stockholm Convention Secretariat and radical environmental groups are using money intended for malaria control to launch anti-pesticide programs in countries plagued by malaria, and gain control over public health policies, insecticides and programs.

Overall, the GEF has spent over $800 million on efforts to eliminate DDT and other “persistent organic pollutants” (POPs). It budgeted nearly $150 million in 2007 alone on its campaign to ban DDT production and use—but spent a lousy $22 million researching alternatives to DDT for vector control.

Until an equally effective and long-lasting substitute for DDT is developed—one that repels, irritates and kills mosquitoes—this vital weapon needs to remain in the disease control arsenal.

The GEF, UNEP, POPs Secretariat and WHO need to withdraw the study; discipline the people who perpetrated this fraud; retract World Health Assembly Resolution 50.13, calling for malaria-infested countries to slash their use of public health insecticides; and issue a statement making it absolutely clear that this “study” was erroneous and deceptive, and should not be considered in setting malaria policies.

Donors to the GEF and radical groups must be exposed. For activists and agencies to continue promoting this study or demand that malaria-endemic countries stop using DDT and insecticides, and adopt bogus “eco-friendly” GEF “solutions,” is gross medical malpractice—and deliberate manslaughter.

Malaria can be controlled, and even eradicated in many areas. We simply need to use every available weapon—including DDT, pesticides, nets, window screens, drugs and other interventions—in an orderly, coordinated and systematic manner; and ensure that mosquito infestations, disease outbreaks, malaria control successes and problems are monitored and evaluated accurately and honestly.

If we do that—and end the anti-pesticide hysteria—we can get the job done.


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Improving the Interior Departments Science and Policies

H. Sterling Burnett @ Heartland Insititute

The U.S. Department of Interior (DOI) is taking a page out of the U.S. Environmental Protection Agency’s (EPA) playbook, to improve the transparency behind the science used to develop regulations on the millions of acres of public lands it controls, and the legal actions it takes in response to lawsuits filed against it.

On September 11, Interior Secretary Ryan Zinke signed a Secretarial Order promoting transparency and accountability in consent decrees and settlement agreements, aimed at ending secret “sue and settle” deals with activist plaintiffs.

Zinke’s order comes almost a year after the EPA issued rules ending such agreements at the agency.

DOI reports from January 1, 2012 through January 19, 2017, Interior entered into more than 460 settlement agreements and consent decrees, resulting in the payment of more than $4.4 billion to plaintiffs, while keeping key provisions of these agreements secret. In President Barack Obama’s last year in office, Interior entered into 96 such agreements or decrees, costing taxpayers more than $1.7 billion.

Although consent decrees and settlements may sometimes be a prudent way to avoid costly litigation in cases DOI is likely to lose, Zinke notes, “concerns have been raised” DOI has used secret settlement agreements to undermine the safeguards Congress established to ensure public input into policymaking.

Order 3368 requires DOI to file public notice of all litigation, proposed settlement agreements, and consent decrees in the Federal Register. Another provision establishes a process for public input before Interior can approve a settlement with significant policy implications or large payouts.

The order requires DOI to establish a publicly accessible “Litigation” webpage linked in the federal Office of the Solicitor’s homepage. Entries on this page must include the names of the parties involved in litigation, the case number, the date filed, the court where the complaint was filed, and the statutory or regulatory provisions at issue in the complaint.

By December 11, 2018, the Solicitor’s office must begin compiling, and the Chief Information Officer to begin posting, a searchable list of final judicial and administrative consent decrees and settlement agreements governing DOI’s actions. The summaries must include a brief description of each decree or agreement, details of any attorney fees or costs paid, and a link to the text of the decree or agreement.

Also, within 15 days of receiving service of a complaint or petition for review of a law or regulation, the Solicitor must notify any state or tribe possibly affected by a pending complaint or petition, except when the state or tribe is a party to the petition.

An example of how this may work comes from EPA’s website, which now includes a page titled “Notices of Intent to Sue the U.S. Environmental Protection Agency,” providing details of nearly 300 notices of intent to sue, mostly from citizen groups plus a few from state and local governments, with a separate table listing about 380 active environmental cases, and a third table providing details of 15 finalized consent decrees and settlement agreements.

In another pro-transparency, pro-accountability move, in the last week of September, DOI followed EPA’s lead once again, implementing a new policy intended to improve the transparency, integrity, and quality of the science its agencies use to make decisions. Going forward, officials may use only scientific studies or findings the underlying data for which are publicly available and reproducible, with few exceptions. EPA proposed a similar policy earlier in 2018.

DOI’s policy covers the science used by the wide variety of bureaus under its jurisdiction, including the Bureau of Land Management, the National Park Service, the U.S. Fish and Wildlife Service, and the U.S. Geological Survey, affecting the science used to shape policies ranging from endangered species determinations and protections—such as the decision to list polar bear populations as endangered based on speculative future risks from climate change even while their numbers are increasing—to decisions about grazing, hunting, mining, and oil and gas production on public lands and offshore. Under the new policy, the climate science used to justify any future actions by DOI to close public lands or offshore areas to oil and gas development, or impose more stringent limits on greenhouse gas emissions from those operations, would now be open to review by the public, including outside scientific auditors.

Announcing the policy, Deputy Secretary David Bernhardt said the order is intended to ensure Interior “bases its decisions on the best available science and provide[s] the American people with enough information to thoughtfully and substantively evaluate the data, methodology, and analysis used by the Department to inform its decisions.”

People have a right to know what their government is up to, yet under previous presidents the science used to justify regulations and policies and the terms of settlement agreements at DOI often blindsided local, state, and tribal governments, industries, public land lessors, and private land owners adjacent to public properties, imposing huge costs on them with little or no notice, based on science hidden from public view. This was unfair, amounting to regulation behind closed doors.

These orders should improve the transparency and soundness of DOI’s policies by giving the general public, we who pay DOI’s bills and for whom they are supposed to work, some input into its decisions.

Trump’s DOI is giving the government back to the people, or at least ensuring we have oversight of and influence on it. Only environmentalists and crony capitalists who historically, in secrecy, have wielded inordinate power over government policy could be opposed to that. Every other department and agency should adopt similar policies.