Our questions for EPA Administrator nominee Lisa Jackson at her Senate confirmation hearing


Climate Science Watch has submitted to the Senate Committee on Environment and Public Works a set of questions we would like to see Chairman Barbara Boxer or other committee members ask Lisa Jackson when she testifies at her confirmation hearing on January 14, before being sworn in as Administrator of the US Environmental Protection Agency.  The questions address several concerns we have had about EPA under the Bush administration, such as the use of restrictive media policies as a tool of political interference with scientific communication, how EPA will work with other agencies to address the impacts of climate change on water resources, and how EPA will handle any inappropriate intervention in the rulemaking process by the White House Office of Management and Budget. 

Our recommendations sent to the Environment Committee:

Questions for Lisa Jackson, nominee for EPA Administrator

Confirmation hearing January 14, 2009

Science communication integrity and agency media policy

Question:  The use of restrictive media policies under the Bush administration as a tool of political interference with scientific communication has been well-documented; for example, the Union of Concerned Scientists and the Government Accountability Project each have issued reports describing the EPA’s widespread practice of preventing its own scientists from communicating with the media and suggesting potential reforms.  Will you promulgate an agency-wide media policy that provides strong protections for freedom of scientific speech by agency scientists?

Background: The use of restrictive media policies under the Bush administration as a tool of political interference with scientific communication has been well-documented.  [For example, see Government Accountability Project, Redacting the Science of Climate Change:  An Investigative and Synthesis Report, 2007 (.pdf] ] The Union of Concerned Scientists, in its recently issued reportFreedom to Speak?  A Report Card on Federal Media Policies—examining whether federal agency media politices allow agency scientists to communicate freely with journalists, gave EPA a grade of “D” on official media policy and a rating of “Unsatisfactory” in practice.  UCS found there is no agency-wide media policy for the EPA, and where policies exist in particular offices, none include strong protections for scientists.  Instructions not to talk to reporters and to forward all media inquiries to public affairs officials are periodically e-mailed to EPA employees.  Interviews with journalists indicated that the EPA is an especially restrictive agency. 

A number of specific reforms of current agency practice are needed.  Based on the findings of its investigative report, Redacting the Science of Climate Change, the Government Accountability Project recommends the executive branch and all federal agencies that support climate change research:

  • Eliminate mandatory pre-approval for media contacts, selective routing of media requests, drafting of anticipated questions and answers by scientists prior to interviews, and monitoring of media communications.  Implement a clear and transparent “notice and recap” media policy in which only a prior notification to public affairs and a subsequent follow-up are required.

  • Reaffirm and educate federal employees about their right to speak on any subject so long as they make clear that they are expressing their personal views and do not use government time and resources – with the important proviso that no restrictions apply when federal employees are exercising their whistleblower rights to disclose unclassified information that is reasonably believed to evidence illegality, gross waste, gross mismanagement, abuse of power, or substantial and specific danger to public health or safety.

  • Bring media policies into compliance with the Anti-Gag Statute, Whistleblower Protection Act, and related provisions, and provide clear regulations as to what constitutes properly classified, sensitive, or restricted information.

  • Ensure the timely and proactive coordination of press releases and media contacts so as to promote rather than limit the flow of information.

  • Ensure that content editing and scientific quality control remain with qualified scientists and the peer-review process.

  • Reaffirm and educate federal employees on their right to review any final draft that is to be published under their name or that substantially references their research.

  • Establish accountability procedures that increase transparency and provide for internal reporting of undue interference with science.

Integrating EPA scientific research with program offices

Question:  The EPA Office of Research and Development (ORD) currently functions as its own organization, essentially separate from the Air, Water, and other media offices.  In the past, this has created a disconnect between ORD’s research and the needs of EPA’s program managers.  What will you do to integrate ORD into the rest of EPA?  How will you ensure that EPA research funds are meeting the urgent needs of EPA’s programs?  How will you improve ORD’s track record of providing timely research to help EPA’s programs get the information they need to develop rules and policies that are supported by good science?

Impacts of climate change on water resources

Question:  President-elect Obama has often stated his support for reducing greenhouse gas emissions.  We have heard much less about his support for preparing our nation to adapt to the likely impacts of climate change.  Since many of the likely impacts have much to do with water, and since EPA has jurisdiction under the Safe Drinking Water Act and the Clean Water Act, what are you prepared to do to help our nation prepare for the impacts of climate change?  Do you view climate adaptation as an important priority for you to address?  If so, how will you factor climate change into the water programs under your jurisdiction?

Question:  Many other federal agencies also have jurisdiction and responsibilities related to water—including the Bureau of Reclamation, the U.S. Geological Survey, NOAA, and USDA, to name a few.  Are you prepared to place a high priority on working on an intergovernmental effort to comprehensively address the issue of climate change and water?

Background:  The Intergovernmental Panel on Climate Change scientific assessment in 2007 projected an increase in the global average surface temperature during the 21st century of somewhere between 1.8 and 6.4 degrees Celsius (about 3 to 11 degrees Fahrenheit), under varying emissions scenarios.  We are also told that this warming is expected to cause changes in the hydrological cycle—from more intense droughts, to more intense rainfalls and floods, to less snow and less snowpack on which many communities rely for drinking water, to sea-level rise and higher storm surge.  These impacts are likely to affect the availability and quality of drinking water and the quality of our nation’s rivers and lakes.  They also will have consequences for our nation’s water infrastructure—in how effectively it will provide safe drinking water and proper wastewater treatment, and in how water and wastewater facilities could be damaged by storms and floods. 

EPA relationship with the Office of Management and Budget

Question:  In exercising your regulatory authority under the Clean Air Act to address the challenge of climate change, how will you protect EPA’s statutory jurisdiction and responsibility against inappropriate intervention in the rulemaking process by White House offices?  In particular, how would you handle a situation in which the OMB Office of Information and Regulatory Affairs inappropriately introduced cost-benefit analysis in reviewing regulations that,  by statute, are to be made on the basis of public health criteria?

Background:  The Clean Air Act and other environmental laws give regulatory decision authority to the EPA Administrator.  However, we have seen White House offices, including the Council on Environmental Quality and particularly the OMB Office of Information and Regulatory Affairs (OIRA), take on an increasingly powerful and interventionist role in second-guessing and impeding the EPA Administrator’s independence in making decisions – even though neither CEQ nor OMB has statutory jurisdiction. 

The Clean Air Act – under which the EPA Administrator is charged with making decisions about, for example, regulating greenhouse gases emissions that endanger public health and welfare, and granting a waiver to the State of California for its greenhouse gas regulatory program – does not specify the use of cost-benefit analysis as a criterion for making such public health-related decisions.  However, OIRA has been directed to use the controversial technique of cost-benefit analysis in exercising its current regulatory review authority.

President-elect Obama has chosen his former University of Chicago law school colleague Cass R. Sunstein to head the Office of Information and Regulatory Affairs, which likely will continue have a powerful say over the pace and content of government regulations in the new administration.  During the Bush years the net effect of OIRA’s activities was a sharp slowdown in regulatory activity, with those regulations that did emerge from the bureaucracy usually far weaker than the scientific evidence would justify.  Sunstein, who has written extensively on regulatory issues, is a firm proponent of using cost-benefit analysis when considering proposed regulations.

OIRA, mired in the old paradigm of blocking environmental and other regulatory initiatives, will, if allowed, raise narrow cost-benefit objections to the regulations needed to implement the President’s initiatives on climate change and other challenges.

In their white paper, A Climate Plan for the New Administration,  Richard Ayres and co-authors, writing under the pen name Justinian, have laid out a critique of the powerful and inappropriately exercised role that OMB’s Office of Information and Regulatory Affairs has assumed in interfering with agency statutory rulemaking responsibilities (excerpt):

[T]he President should reorganize OIRA to facilitate, rather than impede, regulations needed to address global warming. He should begin by repealing Executive Order 12866, which gives OIRA authority to review and reject proposed regulations. The OIRA staff should be confined to the statutory roles given to it, such as overseeing the Paperwork Reduction Act.

For several decades, OIRA has been perhaps the most powerful agency in the Executive Branch standing in the way of needed environmental regulation. In the last eight years, the White House, working through OIRA, delayed, relaxed, or rejected many regulatory proposals…. Congress has never authorized OIRA to perform comprehensive regulatory oversight….

OIRA’s regulatory review powers have instead been expanded by the actions of Presidents, beginning of course with President Reagan’s Executive Order 12291 in 1981. In 1993, President Clinton replaced Executive Order 12291 with Executive Order 12866. The latter order labeled OIRA as the “repository of expertise concerning regulatory issues” and required that all federal agencies submit a unified agenda, including a regulatory plan, to OIRA. The order also requires agencies to submit to OIRA the full text and justifications for every proposed and final significant regulatory action. OIRA is tasked with reviewing the rules and returning to the submitting agency any rule that is inconsistent with applicable law, the President’s priorities, the principles listed in the executive order, or any policies or actions of another agency.

Perhaps most important and most controversial is OIRA’s charge to evaluate regulations using formal cost-benefit analysis. This analytical technique requires the quantification and monetization (that is, the translation into dollars) of the consequences of regulatory action, even where those consequences – such as human lives saved and human illnesses averted – may not readily be converted into precise numbers, much less dollars. The technique also requires the discounting of future costs and benefits of regulation. Discounting is a somewhat arcane procedure, but, simply stated, it is compound interest in reverse; just as compound interest can magically turn a small amount of money into a large amount, discounting can magically turn enormous future benefits into a trivial sum….

OIRA, mired in the old paradigm of blocking environmental and other regulatory initiatives, will, if allowed, raise narrow cost-benefit objections to the regulations needed to implement the President’s initiatives. Indeed, with respect to climate change, as we have noted, OIRA has even shown an eagerness to edit agencies’ statements of the science on climate change and the actions possible under existing law – without any reference to cost-benefit imperatives.

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