Adjusting Science to Fit Policy

Some have been urging a tax cut larger than the $1.6 trillion urged by President Bush. Their case was strengthened this week when the Supreme Court upheld the Environmental Protection Agency’s air pollution regulations — junk science-powered rules estimated to cost Americans an estimated $100 billion per year.

The EPA rules issued in 1997 require that geographic regions meet stringent standards for airborne fine particulate matter (soot) and ground-level ozone (smog). Industry groups sued the EPA over the standards. A federal appellate court tossed out the standards in May 1999 citing a little-used constitutional doctrine called "nondelegation."

The appellate court ruled the EPA unconstitutionally usurped legislative power reserved for Congress. The EPA appealed to the Supreme Court. Industry groups convinced the Court also to review whether the EPA should have considered the cost in setting the standards.

The Supreme Court ruled the EPA’s authority to issue the standards did not violate the Constitution, and that the Clean Air Act does not permit the EPA to consider costs in setting the standards.

From practical and legal perspectives, the Justice Scalia-authored opinion isn't a surprise. Regardless of the merits of nondelegation, accepting the argument might cause chaos by jeopardizing many other law-like federal agency rules. The Clean Air Act does not expressly permit the EPA to consider costs.

But the key flaw of the EPA standards involves something not examined by the courts — the EPA’s lousy science.

The EPA relied on a single, feeble statistical study purporting to associate air pollution with premature death. The study had no data on how much air pollution even a single study subject was exposed to. Moreover, the study’s methodology was inherently incapable of scientifically linking air pollution with premature death.

When Congress asked the EPA to produce the study data for independent scientific review, the agency brazenly refused stating, "We do not believe ... there is a useful purpose for [obtaining] the underlying data."

The EPA eventually coughed up the data for review, but not until months after the air pollution standards were finalized. The review was hardly "independent" as the reviewing organization was half-funded by the EPA.

Congress was so outraged it enacted a law, but too late for the EPA standards. The law requires scientific data used to support federal policy to be made available to the public.

Now it’s time for Congress to act again.

The Clean Air Act should be amended to require the EPA to use only sound science as the basis for regulation. And there must be timely and adequate means for challenging the agency’s scientific data and reasoning.

It’s widely known that EPA science is suspect. An independent review panel concluded in 1992 that the EPA "often adjusts science to fit policy." Under the Clinton administration, the EPA’s science was politicized even more.

Worse, the EPA’s politicized science is virtually untouchable in court. Most EPA actions can be overturned by a court only if proven to be "arbitrary and capricious." This legal standard is easy for the EPA to refute. Virtually any excuse offered by the agency — no matter how lame — meets it.

In contrast, worker safety rules issued by the Occupational Safety and Health Administration must be supported by "substantial evidence." Courts have torpedoed many junk science-fueled OSHA regulatory efforts based on this standard.

Unfortunately, it won’t be easy opening up the Clean Air Act.

The environment is a throw-away issue for Republicans reluctant to spend their limited political capital fighting eco-political correctness, and President Bush may be uncomfortable re-visiting a law his father is proud of helping to shape. New EPA administrator Christine Todd Whitman embraced the Supreme Court ruling.

But forcing the EPA to use sound science isn’t the only reason action is necessary.

The EPA estimates that between 1970 and 1990, $523 billion was spent to reduce U.S. air pollution. Pollutant emissions declined dramatically during that time — sulfur dioxide by 40 percent, nitrogen oxides by 30 percent, volatile organic compounds by 45 percent, carbon monoxide by 50 percent, and particulate matter by 75 percent.

Pollutant emissions have since declined even more, and the public’s health is not in jeopardy. We’re making solid progress without breaking the bank

But the Supreme Court just gave the EPA the green light to quadruple this level of spending on just a few air pollutants. Is this how Congress and the Bush Administration want us to spend our tax cut?

— Steven Milloy is a biostatistician, lawyer and adjunct scholar at the Cato Institute and publisher of