On "Waters of U.S." Rule, EPA’s Science Advisory Board Conflates Policy Preferences for Science

COMMENTARY Environment

On "Waters of U.S." Rule, EPA’s Science Advisory Board Conflates Policy Preferences for Science

Jan 31st, 2020 4 min read
COMMENTARY BY
Daren Bakst

Senior Research Fellow in Agricultural Policy

Bakst studies and writes about agricultural and environmental policy and property rights, among other issues.
None of this is appropriate for the Science Advisory Board. NoDerog/Getty Images

Key Takeaways

The Environment Protection Agency’s Science Advisory Board is supposed to provide scientific advice to the EPA administrator.

The government didn’t create this science advisory board so it could get the legal opinions of scientists.

The most basic solution is to ensure that when the federal government, including its science advisory boards, disseminate what is labeled as science, it is in fact s

The Environment Protection Agency’s Science Advisory Board is supposed to provide scientific advice to the EPA administrator.

The Science Advisory Board seems to have forgotten this simple requirement. 

Based on the board’s actions regarding the EPA and U.S. Army Corps of Engineers’ efforts to define “waters of the United States” under the Clean Water Act, the Science Advisory Board seems to think it’s the legal or policy advisory board. 

The board developed a draft “commentary” critical of the proposed regulatory definition of “waters of the United States.” The problem is, the commentary (both the original and latest version) isn’t a science document, but a legal and policy document drafted by scientists who the media are using to put a negative spin on the proposed rule and the recently released final rule.  

It isn’t the Science Advisory Board’s job to say nice things about regulations, but it is the board’s job to answer science questions. But that’s not what it did in its commentary.

Even drafting a “commentary” is a red flag that the document isn’t likely to be focused on science. After all, science answers objective questions, not subjective questions, such as those in law and policy.

The Science Advisory Board went off mission because it chose to use its commentary to answer a legal question. Specifically, it tried to answer what the legal definition of “waters of the United States” should be.  

Even worse, the board went so far as to try to draw legal conclusions, arguing that the proposed definition isn’t consistent with the objectives of the Clean Water Act.  

None of this is appropriate for the Science Advisory Board. The government didn’t create this science advisory board so it could get the legal opinions of scientists.

Not surprisingly, the board’s legal and policy analysis is lacking.  Unfortunately, this analysis forms the basis for its criticism of the EPA and Army Corps’ definition of “waters of the United States.”

The Science Advisory Board’s commentary is, in effect, criticizing the EPA and the Corps for not looking solely at the science in forming its legal definition of “waters of the United States.” The fact that the EPA and the Corps have legal constraints and policy considerations in developing the definition was of no concern to the board.  

In fact, the board expressly acknowledged it doesn’t care about the agencies’ interpretation of the law or any legal constraints imposed upon them. It points out that the board can’t consider these legal issue because it must only look at the science.

The board would absolutely be right if they were looking at the science to answer science questions. Once again, here’s the big problem: They are not answering a science question. They are trying inappropriately to answer a legal question.  

The answer to any legal or policy question isn’t found by just looking at science. Science can inform answers to these questions, such as the legal definition of “waters of the United States,” but it alone can’t provide the answer because these are inherently subjective questions.

The Science Advisory Board might think that the EPA and the Corps shouldn’t consider the Constitution, the Clean Water Act, case law, property rights, regulatory clarity, and federalism, among other things, in developing their definition of “waters of the United States,” but the EPA and the Corps rightfully recognize that they are required to consider these issues. 

They also recognize, unlike the Science Advisory Board, that the legal definition must actually follow the law.

If the board were open about the fact that it had developed a legal analysis, then its commentary would be of far less concern, because it would be easily dismissed. It becomes a concern, though, because the board is publishing a legal analysis under the cover of science.  

The public might be led to incorrectly think that the EPA and the Corps are not just wrong with their regulatory definition, but they are objectively wrong because the Science Advisory Board and its “science” say so. (After all, science answers objective questions.)

The Science Advisory Board’s conflating of science and policy (and law) isn’t an isolated situation. This problem pervades the federal government and is a widely recognized problem that undermines the integrity of agency science.

The most basic solution is to ensure that when the federal government, including its science advisory boards, disseminate what is labeled as science, it is in fact science. 

If this solution were in place, then the Science Advisory Board’s inappropriate legal and policy commentary on “waters of the United States” never would have been drafted in the first place.

This piece originally appeared in The Daily Signal