[Senate Hearing 114-38]
[From the U.S. Government Publishing Office]
S. Hrg. 114-38
OVERSIGHT HEARING ON SCIENTIFIC ADVISORY PANELS AND PROCESSES AT THE
ENVIRONMENTAL PROTECTION AGENCY AND LEGISLATIVE HEARING ON S. 543, THE
SCIENCE ADVISORY BOARD REFORM ACT OF 2015
=======================================================================
HEARING
before the
SUBCOMMITTEE ON SUPERFUND, WASTE MANAGEMENT, AND REGULATORY OVERSIGHT
of the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
MAY 20, 2015
__________
Printed for the use of the Committee on Environment and Public Works
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
JAMES M. INHOFE, Oklahoma, Chairman
DAVID VITTER, Louisiana BARBARA BOXER, California
JOHN BARRASSO, Wyoming THOMAS R. CARPER, Delaware
SHELLEY MOORE CAPITO, West Virginia BENJAMIN L. CARDIN, Maryland
MIKE CRAPO, Idaho BERNARD SANDERS, Vermont
JOHN BOOZMAN, Arkansas SHELDON WHITEHOUSE, Rhode Island
JEFF SESSIONS, Alabama JEFF MERKLEY, Oregon
ROGER WICKER, Mississippi KIRSTEN GILLIBRAND, New York
DEB FISCHER, Nebraska CORY A. BOOKER, New Jersey
MIKE ROUNDS, South Dakota EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska
Ryan Jackson, Majority Staff Director
Bettina Poirier, Democratic Staff Director
----------
Subcommittee on Superfund, Waste Management,
and Regulatory Oversight
MIKE ROUNDS, South Dakota, Chairman
DAVID VITTER, Louisiana EDWARD J. MARKEY, Massachusetts
MIKE CRAPO, Idaho THOMAS R. CARPER, Delaware
JOHN BOOZMAN, Arkansas JEFF MERKLEY, Oregon
DAN SULLIVAN, Alaska CORY A. BOOKER, New Jersey
JAMES M. INHOFE, Oklahoma (ex BARBARA BOXER, California (ex
officio) officio)
(II)
C O N T E N T S
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Page
MAY 20, 2015
OPENING STATEMENTS
Rounds, Hon. Mike, U.S. Senator from the State of South Dakota... 1
Markey, Hon. Edward J., U.S. Senator from the State of
Massachusetts.................................................. 3
Boozman, Hon. John, U.S. Senator from the State of Arkansas...... 9
WITNESSES
McClellan, Roger O., Advisor, Toxicology and Human Health Risk
Analysis....................................................... 11
Prepared statement........................................... 13
Hadzi-Antich, Ted, Senior Staff Attorney, Pacific Legal
Foundation..................................................... 25
Prepared statement........................................... 27
Gomez, Alfredo, Director, Natural Resources and Environment Team,
U.S. Government Accountability Office.......................... 30
Prepared statement........................................... 32
Yosie, Terry, President and CEO, World Environment Center........ 48
Prepared statement........................................... 50
Faber, Scott, Senior Vice President, Government Affairs,
Environmental Working Group.................................... 55
Prepared statement........................................... 57
(III)
OVERSIGHT HEARING ON SCIENTIFIC ADVISORY PANELS AND PROCESSES AT THE
ENVIRONMENTAL PROTECTION AGENCY AND LEGISLATIVE HEARING ON S. 543, THE
SCIENCE ADVISORY BOARD REFORM ACT OF 2015
----------
WEDNESDAY, MAY 20, 2015
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Superfund, Waste Management,
and Regulatory Oversight,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:34 a.m. in
room 406, Dirksen Senate Building, Hon. Mike Rounds (chairman
of the subcommittee) presiding.
Present: Senators Rounds, Crapo, Boozman, Fischer, Inhofe,
Markey, and Booker.
OPENING STATEMENT OF HON. MIKE ROUNDS,
U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA
Senator Rounds. Good morning, everyone.
The Environment and Public Works Subcommittee on Superfund,
Waste Management, and Regulatory Oversight is meeting today to
conduct an oversight hearing on Scientific Advisory Panels and
Processes at the Environmental Protection Agency and
Legislative Hearing on S. 543, the Science Advisory Board
Reform Act of 2015.
The Environmental Protection Agency is tasked with
developing environmental regulations that impact every American
in every State across the entire Country. These regulations
affect the water we drink, the air we breathe and the land we
use.
The EPA has affirmed science is to be ``the backbone of EPA
decisionmaking.'' The Science Advisory Board and the Clean Air
Scientific Advisory Committee, which are made up of scientific
experts, are to supply the EPA with independent scientific and
technical advice on a wide range of topics, from hydraulic
fracturing, to ozone emissions, to stream and wetland
connectivity. The EPA is to rely on this advice to assist them
in crafting and issuing appropriate environmental regulations.
Unfortunately, in recent years EPA regulations have been
driven not by science but by politics. The EPA has not
submitted critical agency science or technical information to
the Science Advisory Board for review prior to implementing
major regulations such as greenhouse gas rules for cars and
trucks, new source performance standards for coal-fired power
plants, and ozone regulations, despite statutory authority to
do so.
Rather than allowing the science to drive the regulations,
the EPA is carrying out the Administration's political agenda
through regulations with questionable science supporting them.
For example, at an Environment and Public Works subcommittee
hearing yesterday, we heard testimony that the EPA focused on
the wrong issues when requesting the SAB to review an EPA-led
study that became a scientific foundation for the overly
burdensome Waters of the U.S. Rule that is due out in the near
future. EPA, to achieve its goal of expanding jurisdiction,
made the science fit into their preplanned agenda and the
result will be a tremendous example of Federal overreach.
In addition, due to not using proper science to begin with,
as reported yesterday by the New York Times, the EPA engaged in
its own lobbying campaign, under a questionable legal basis, to
garner support for this rule.
Despite the fact that the SAB is to be an independent body
that provides independent advice to the EPA, many SAB members
are receiving EPA grants, which not only lends itself to
conflict of interest issues, but also ties the hands of SAB
members who may not be inclined to provide dissenting views or
disagree with agency science.
When members do disagree with EPA science, there is little
opportunity for members to express dissenting views. We have
also seen many instances in which members of these boards are
reviewing their own scientific work without recusing
themselves.
This diminishes any possibility that these boards will
offer a truly impartial opinion regarding the validity of the
science EPA is relying on. For example, a recent CASAC review
showed that 21 of 25 panelists had their own work cited by the
EPA and meeting minutes did not note a single recusal.
Further, there is little opportunity for public
participation or comments in these scientific reviews and there
is minimal State, local and tribal representation on these
boards. The 47-member chartered SAB includes only three members
from two States--California and Vermont. Additionally, the
panels tasked with advising the EPA on hydraulic fracturing and
water body connectivity did not include representatives from
any States.
As a result of these reviews, the EPA implements
regulations that affect the entire Country, yet there is
minimal State participation on these boards and when there is,
the vast majority of the Country remains unrepresented.
S. 543, the Science Advisory Board Reform Act of 2015, aims
to address these problems by inserting more transparency and
accountability in the SAB process. If passed, it will allow for
more public participation in the SAB review process, more
accountability for the members of the board, and provide for
more transparency for Congress and the public regarding the
science behind EPA regulations.
The EPA should rely on the most up-to-date and sound
science as the foundation for every regulation implemented by
the agency. It is vital that this scientific review process be
done in a transparent manner, undertaken by experts who can
provide an impartial and independent opinion, and with
sufficient representation by those who would be affected by
these regulations.
I would like to thank our witnesses for taking the time to
be with us today and I look forward to hearing your testimony.
I would like to recognize my friend, Senator Markey, for a
5-minute opening statement.
OPENING STATEMENT OF HON. EDWARD J. MARKEY,
U.S. SENATOR FROM THE STATE OF MASSACHUSETTS
Senator Markey. I thank you, Mr. Chairman. Thank you for
calling today's hearing to discuss EPA scientific advisory
panels and scientific processes.
I would like to start by embarking on a little scientific
journey through time without the help of quantum mechanics. In
the 17th century, Galileo proved that the sun, not the earth,
was at the center of the solar system. This revelation was, to
put it mildly, not welcomed by society. Galileo was tried and
convicted of heresy and sentenced to life under house arrest.
In 1992, more than 350 years later, after Galileo's
condemnation, Pope John Paul II acquitted the father of science
from his erroneous conviction.
Similarly, in the 19th century, Charles Darwin proposed the
theory of evolution and was condemned for his findings. In
2008, in honor of Darwin's 200th birthday, the Church of
England issued an apology saying that ``when a big new idea
emerges which changes the way people look at the world, it is
easy to feel that every bold idea, every certainty is under
attack and then to do battle against the new insights.''
History's shoot-the-messenger approach to scientific
discovery has evolved over time. Now political scientists in
Washington are experimenting with new ways to use science as a
weapon to thwart actions to protect public health and the
environment.
In this century for example, my staff wrote a report on how
the Bush administration dismissed academic experts from serving
on the Center for Disease Control Scientific Advisory Panel
charged with recommending safe blood lead levels for infants
and replaced them with expert witnesses for the lead and paint
industries.
A wide range of the regulations that keep us safe, from the
food we eat to the technology we use to the air that we
breathe, requires scientific guidance. In 1978, Congress
created EPA's Scientific Advisory Board to provide just that.
Unfortunately, the Science Advisory Board Reform Act of
2015 will cripple the scientific process at the EPA. Quite
simply, this bill is a solution in search of a problem. For
example, EPA currently reviews potential financial conflicts of
interest for board members privately, the same way that it is
done for most of the Federal advisory committees.
This bill requires that board members' personal financial
information, which could include information in their tax
returns or information about their family's finances be made
publicly available.
Some say this is a needed transparency measure but I note
this provision could result in the mandatory public disclosure
of more information than even United States Senators are
required to make. This provision will have a chilling effect on
the participation of qualified scientists.
The bill would also require that the board provide written
response to public comments it receives on its work. Since
current law prevents the board from considering any public
comments without holding a public meeting, the board could be
forced into indefinite public meetings to address comments
which then generate more public comments that require more
public meetings without ever getting to finish their scientific
report.
This bill also changes the board's membership. Currently,
membership is based solely on scientific expertise. The bill
would require EPA to consider where experts work, not just what
they know.
I would also like to note that the committee marked up S.
544, the Secret Science Reform Act of 2015, before even holding
a hearing on the topic and over the objections of every
Democrat on the committee.
In any credible scientific process, the conclusions are
made after you do the experiment, so the committee got it
exactly backward. Let us not get it backward with EPA's
Scientific Advisory Board as well.
We might not agree on the regulations that EPA proposes,
but we should all be able to agree that the scientists should
be free to provide advice without onerous requirements and
restrictions.
Finally, I ask unanimous consent that letters from the
Union of Concerned Scientists and the American Lung Association
be included in the record.
Senator Rounds. Without objection.
[The referenced information follows:]
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Senator Markey. I look forward to hearing from the
witnesses and I yield back the balance of my time.
Senator Rounds. Thank you, Senator Markey. We appreciate
your sharing of your thoughts.
I would now like to recognize Senator Boozman for a
statement on his legislation, S. 543, the Science Advisory
Board Reform Act of 2015.
Senator Boozman.
OPENING STATEMENT OF HON. JOHN BOOZMAN,
U.S. SENATOR FROM THE STATE OF ARKANSAS
Senator Boozman. Thank you, Chairman Rounds and Ranking
Member Markey, very much for holding this hearing.
Thank you for being here to testify and participate with
your comments.
Senator Manchin could not join us today. He and I
introduced the Science Advisory Board Reform Act earlier this
year. However, rather than provide an individual statement, I
would like to read a joint statement that Senator Manchin and I
prepared together.
Again, I want to thank Senator Manchin and his staff. They
work very, very hard to solve problems on a bipartisan basis.
With that, we believe that work to conserve the environment
and protect human health should be science-based. Science is a
vital tool to inform policymakers. When science is used to
justify environmental policy, it must be verifiable and
developed through an open and well structured process.
For these reasons, we have introduced the Science and
Advisory Order Format. Our legislation will make modest
improvements to the EPA science and advisory process. Our bill
provides limited reforms. We hope our efforts will achieve
further bipartisan support. That certainly is our goal.
S. 543 takes the following modest steps. First, it
increases transparency. Specifically, it allows the public to
submit comments on Science Advisory Board activities through an
open process.
Second, our bill enables expanded board reviews,
particularly of the risk or hazard assessments that are
important to determine which potential regulations are needed
most.
Third, our bill also standardizes the SAB member selection
process. Specifically, the standardized process is based on
structures that are laid out in the Federal Advisory Committee
Act, the EPA's Peer Review Handbook and the National Academy's
Policy on Committee Composition and Balancing Conflicts of
Interest.
Fourth, our bill also ensures that any dissenting views on
review panels are not silenced.
Fifth, our bill limits non-scientific policy advice from
the Science Advisory Board.
Finally, it increases SAB disclosures in an effort to
reduce conflicts of interest.
The bottom line is that the EPA, at times, provides for
excellent scientific reviews. Other times, there are gaps in
the process. Sometimes the review process is entirely bypassed
or ignored.
We believe that enabling public comments and protecting
dissenting views is important to make sure that the board
becomes aware of its own blind spots. Standardizing the process
will ensure that excellent scientific reviews are reinforced
and consistently carried out.
We believe the principles behind these reforms can be
broadly supported. We are open to suggestions on how the bill
can be improved. We want the final product to draw substantial
support from both Democrats and Republicans because we are
simply working to improve the process.
In fact, we have already accepted some criticisms and made
changes. An earlier version prohibited board members from
participating in advisory activities that directly or
indirectly involved review or evaluation of their own work.
This provision was criticized as too broad since many items
before the board are highly technical. Since prohibiting
participation by certain members could create blind spots, we
have amended the current version to allow such board members to
participate as long as they fully disclose their involvement in
the underlying work and as long as the work has been externally
peer-reviewed.
This is an example of our determination to work in good
faith and to make this bill as good as it can be. We hope our
colleagues in both parties will be willing to engage in this
legislation process so that we can advance a final bipartisan
bill to the President's desk that can be signed into law.
Whether we are dealing with a Republican Administration or
a Democratic Administration, many Americans feel uncertain that
the regulatory process involves an adequately credible
scientific review. We would all benefit from reforms to
increase the credibility of the process.
On one final note, we strongly believe the Science Advisory
Board is made up of highly dedicated, hardworking and skilled
scientists. They provide their expertise to the EPA and provide
a vital service to the public. Their work is often thankless.
Our legislation is intended to help these dedicated
professionals perform their vital tasks independently and to
improve the credibility of the agency.
With that, we thank the Chairman and Ranking Member for
today's hearing and we look forward to considering the
testimony of the witnesses. Thank you, Mr. Chairman and Ranking
Member.
Senator Rounds. Thank you, Senator Boozman.
Our witnesses joining us for today's hearing are: Dr. Roger
O. McClellan, Advisor, Toxicology and Human Health Risk
Analysis; Ted Hadzi-Antich, Senior Staff Attorney, Pacific
Legal Foundation; Alfredo Gomez, Director, Natural Resources
and Environment Team, U.S. Government Accountability Office;
Dr. Terry Yosie, President & CEO, World Environment Center; and
Scott Faber, Vice President, Government Affairs, Environmental
Working Group.
Now we will turn to our first witness, Mr. Roger McClellan,
for 5 minutes. Mr. McClellan, you may begin.
Senator Inhofe. Mr. Chairman, let me interrupt for a moment
to say a special welcome to Dr. McClellan. The last time he was
here was when I had your job and I was sitting there as
chairman of this subcommittee. It was in 1997. Welcome back.
STATEMENT OF ROGER O. McCLELLAN, ADVISOR, TOXICOLOGY AND HUMAN
HEALTH RISK ANALYSIS
Mr. McClellan. Thank you very much. Good morning, Mr.
Chairman and members of the subcommittee.
Thank you for the invitation to present my views on the
importance of independent scientific advice to inform policy
decisions to the Environmental Protection Agency and the
importance of an efficient and effective Science Advisory
Board.
I request that my complete written testimony be entered in
the record as though read in its entirety.
By way of background, I have had a multifaceted career
focusing on conduct and management of what I call issue
resolving scientific research. A major portion of my career was
spent providing leadership for two organizations, one funded
primarily by the Federal Government and the second funded
primarily by the chemical industry.
Recently, I have served as an advisory to public and
private organizations on issues related to the impact of air
quality on health.
Throughout my career, I have served on numerous advisory
committees for government agencies, academic institutions,
private organizations, including service on more than two dozen
EPA committees. The independent views I relate today draw on
that experience. Let me summarize my views.
First, sound, independent, scientific advice from competent
scientists outside of organization is critical to the
successful functioning of any science-based enterprise
operating in the public or private sector, including the U.S.
Environmental Protection Agency.
The EPA Science Advisory Board is a primary vehicle for the
agency to obtain that kind of independent, scientific advice.
Two, the EPA's approach to creating and using scientific
advisory committees and panels has continued to change over the
45-plus year history of the agency. Yet, I see numerous
opportunities for further improving the efficiency and
effectiveness of the Science Advisory Board.
Three, the scientific basis for all major EPA policies and
regulations should be reviewed by the SAB. However, the SAB's
mission should be sufficiently broad that it has the authority,
which it should exercise from time to time, to offer scientific
advice on issues identified by the SAB independent of requests
from the agency.
Four, while scientific knowledge should inform all of EPA's
policies and regulations, it should be recognized by
scientists, policymakers, legislators and the public that
policies and regulations are ultimately policy judgments. They
are often not dictated by the science alone but rather informed
by it as there is often a range of justifiable policy decisions
the regulator can make.
Five, the agency should strive to obtain the best possible
evaluation of the strengths and the weaknesses of the
scientific evidence relating to the issue at hand and should
avoid placing undue emphasis and pressure on seeking consensus.
In my opinion, consensus is a social phenomenon grounded in
ideology and is not always well suited to dealing with
scientific issues.
Sixth, selection for service on the SAB or as a consultant
should be based on the scientific credentials of the nominees
without respect to their potential views or the policy or
regulatory outcome on the issue being addressed. To date, the
agency has focused on recruiting academic scientists and left
untapped a large, large pool of highly competent individuals
employed in the private sector.
Seven, all SAB activities should be transparent and open to
the diverse public. The SAB does play a vital role in providing
a forum for the public.
Eight, further improvements in EPA's advisory committee
process should be built on a broad review of past EPA advisory
committee activities and operations, both successes and
failures.
Nine is the identification of best practices used by EPA,
as well as other public and private organizations, a review of
how the agency uses advice and input from the public and
careful attention to how SAB members and consultants are
appointed.
All processes should be transparent and individuals
appointed based on their scientific credentials and the absence
of any bias as to the potential policy or regulatory outcome of
the issue at hand.
In my opinion, the proposed legislation is a positive step
in the right direction to enhance EPA's SAB role in ensuring
the quality of scientific information used to inform EPA's
policies and regulations that impact the well being of every
American.
It is most important that changes resulting from
legislation and equally important, that more rigorous EPA
management focus on ensuring the transparency of the process
that provides sound scientific advice to inform policy
decisions and regulations with meaningful participation from
all sectors of the U.S. economy.
I will be pleased to address any questions or comments
later in the session.
Thank you very much for your attention.
[The prepared statement of Mr. McClellan follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Rounds. Thank you, Dr. McClellan.
Now, we will hear from Mr. Ted Hadzi-Antich. You may begin.
STATEMENT OF TED HADZI-ANTICH, SENIOR STAFF ATTORNEY, PACIFIC
LEGAL FOUNDATION
Mr. Hadzi-Antich. Thank you.
Good morning, Mr. Chairman and other distinguished members
of the subcommittee.
My name is Ted Hadzi-Antich. I am a senior attorney with
the Pacific Legal Foundation, a nonprofit organization
dedicated to protecting individual liberty, property rights,
and a balanced approach to environmental regulation.
I have been practicing environmental law for about 40
years. I have a good understanding of EPA's regulatory
policies, including, for purposes of this testimony, EPA's
interaction with the Science Advisory Board.
In my view, EPA is not using the board effectively,
efficiently, or even wisely. Congress enacted the SAB organic
statute in the 1970s to deal with public criticism that EPA's
regulatory proposals lacked scientific and technical
credibility. It created the board to provide an expert peer
review looking at the science undergirding regulatory proposals
by EPA.
Under the current statute, certain regulatory proposals
must be submitted by EPA to the board for peer review, but the
board, itself, has no responsibility to respond in any
particular way to any particular regulatory proposal.
This issue really came to a head, in my view, starting in
2009 when EPA promulgated the first suite of greenhouse gas
emission regulations under the Clean Air Act, including
emission regulations for carbon dioxide.
Carbon dioxide is a ubiquitous natural substance. It is
everywhere and it is in everything. When EPA started regulating
carbon dioxide, it opened the door for Federal regulation of
everything, everywhere in the Nation. That is a tremendous
power for a Federal administrative agency to have.
The first suite of EPA regulations was promulgated without
any input from the Science Advisory Board. As a matter of fact,
EPA did not even submit the proposed rules to the Science
Advisory Board to receive their review and comment.
After promulgating those regulations, EPA took the position
that it does not have to submit any proposed rule to the
Science Advisory Board unless there is an independent Federal
statute other than the SAB organic statute that requires EPA to
submit a regulatory proposal to another Federal agency as part
of interagency interaction, and then only if, with regard to
regulations under the Clean Air Act, there is a substantial
likelihood that the regulation would have been significantly
changed, if SAB were given the opportunity to review it.
These two policy decisions by the EPA, which add a veneer
to the SAB organic statute, especially in the context of
important regulations like carbon dioxide emissions, really
undercut the very purpose of the SAB peer review requirement.
I think S. 543 goes a long way to deal with these
situations. My recommendation is to consider three overarching
issues in connection with the SAB review process.
One, every proposed regulation that EPA is required to
publish in the Federal Register under the Administrative
Procedures Act should be required to be submitted to the SAB
for peer review.
Two, when EPA fails to comply with the SAB submittal
requirement, that failure should be judicially reviewable under
the standard provisions of the Administrative Procedures Act.
Three, with regard to the most important regulations
governing the Nation as a whole, such as carbon dioxide, which
impacts not only the national economy but pretty much every
aspect of the national life, with regard to those regulations,
SAB should be given the duty to respond in some appropriate way
to the proposed regulation.
Thank you very much for the opportunity to provide this
testimony.
[The prepared statement of Mr. Hadzi-Antich follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Rounds. Thank you for your testimony, Mr. Hadzi-
Antich. We appreciate your testimony.
Our next witness is Mr. Alfredo Gomez from GAO. Mr. Gomez,
you may begin.
STATEMENT OF ALFREDO GOMEZ, DIRECTOR, NATURAL RESOURCES AND
ENVIRONMENT TEAM, U.S. GOVERNMENT ACCOUNTABILITY OFFICE
Mr. Gomez. Thank you, Chairman Rounds, Ranking Member
Markey and members of the subcommittee.
Good morning. I am pleased to be here today to discuss two
Federal advisory bodies that review the scientific and
technical basis for EPA decisionmaking. These are EPA's Science
Advisory Board, which, as already noted, is authorized to
review the adequacy of the scientific and technical basis of
EPA's proposed regulations and the Clean Air Scientific
Advisory Committee, which provides independent advice to EPA on
air quality criteria.
My statement today summarizes preliminary observations from
our ongoing work on which we plan to complete and issue a
report in June 2015. I will focus on two main areas.
The first area is EPA's process for responding to
congressional requests to the SAB and two, the extent to which
CASAC has provided advice related to air quality standards.
The Environmental Research Development and Demonstration
Authorization Act of 1978 requires the SAB to provide the EPA
Administrator with scientific advice and to also provide
scientific advice to designated congressional committees when
requested.
CASAC is required to provide advice to the EPA
Administrator with regard to EPA's national ambient air quality
standards. The Clean Air Act requires EPA to set and
periodically review and revise the air quality standards for
certain air pollutants.
As Federal advisory committees, both the SAB and CASAC are
subject to the Federal Advisory Committee Act. The head of each
agency that uses Federal advisory committees is responsible for
exercising certain controls over those committees.
For example, the EPA Administrator is responsible for
establishing administrative guidelines and management controls
that apply to all of the agency's advisory committees and for
appointing a designated Federal officer for each advisory
committee.
As required by FACA, the SAB and CASAC operate under
charters that include information on their objectives, scope of
activities and the officials to whom they report.
Regarding the first area of our study, our preliminary
observations indicate that EPA's policies and procedures for
processing congressional requests to the SAB do not ensure
compliance with ERDDAA because the procedures are incomplete.
While these documents provide some direction for how EPA
and the SAB are to process requests from congressional
committees, the documents do not clearly outline how the EPA
Administrator, the SAB staff office and members of the SAB
panel are to handle a congressional committee's request for
advice from the SAB.
EPA's policies and procedures lack clarity. Specifically,
they do not clearly acknowledge that the SAB must provide
scientific advice when requested by select congressional
committees, nor state which of two offices should process the
request. Finally, they do not clearly establish procedures for
determining questions the SAB would answer.
Second, regarding the extent to which CASAC has provided
advice related to air quality standards, our preliminary
observations indicate CASAC has provided certain types of
advice related to the review of national ambient air quality
standards.
According to a senior EPA official, CASAC has carried out
its role in reviewing the air quality criteria and the air
quality standards as required by the Clean Air Act. However,
CASAC has never provided advice on adverse social, economic or
energy effects of strategies to implement the air quality
standards.
This is, in part, because, according to the law, air
quality standards are to be based on public health and welfare
criteria rather than on the social, economic or energy effects.
In addition, EPA has never asked CASAC to do such a review.
In summary, EPA has developed additional policy documents
to try to help clarify how to process congressional requests to
the SAB but some questions remain about that process that could
affect the SAB's compliance with ERDDAA.
Chairman Rounds, Ranking Member Markey and members of the
subcommittee, this completes my statement. I would be happy to
respond to any questions.
[The prepared statement of Mr. Gomez follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Rounds. Thank you, Mr. Gomez.
We will now hear from our next witness, Dr. Terry Yosie.
Dr. Yosie, you may begin.
STATEMENT OF TERRY YOSIE, PRESIDENT AND CEO, WORLD ENVIRONMENT
CENTER
Mr. Yosie. Thank you, Mr. Chairman, for the opportunity to
testify today on the issue of the management of scientific
advisory panels at the U.S. Environmental Protection Agency.
I appear today in a personal capacity as my employer, the
World Environment Center, is a non-profit organization that
conducts no advocacy activities.
My comments today will reflect several career experiences.
From 1981 through 1988, I served as the Director of EPA's
Science Advisory Board during the Administration of Ronald
Reagan. I later served as Vice President for Health and
Environment at the American Petroleum Institute and also as
Vice President for Environment, Health, Safety and Security at
the American Chemistry Council.
Effective management of scientific advisory processes at
EPA should embody several important principles. These
principles include the following.
The advice provided by scientific advisory committees
should only be advisory in nature. In practice, this means that
advisory committee reports should be explicitly taken into
account during the policymaking process but they are not
binding.
Second, appointments to scientific advisory panels should
be made on the basis of merit rather than institutional
affiliation or quotas. In 1982, President Ronald Reagan vetoed
legislation that would have undermined this principle by
requiring that appointments to EPA's Science Advisory Board be
based on representation of specific interests rather than
scientific merit.
If I may quote President Reagan, ``this requirement runs
counter to the basic premise of modern scientific thought as an
objective undertaking. The purpose of the Science Advisory
Board is to apply the universally accepted principles of
scientific peer review to the research conclusions that will
form the basis for EPA regulations, a function that must remain
above interest group politics.''
I believe that President Reagan's words echo across the
decades and are directly relevant to the discussion we are
having today.
Third, scientists can never answer all of the scientific
questions, but they can and must help policymakers focus on the
important scientific questions.
Fourth, most potential conflict of interest issues can be
resolved by an appropriate level of transparency, but not all
of them. I personally would take a dim view of any scientist
who refuses to disclose the source of his or her research
funding or who believes there is no conflict issue in reviewing
one's own published work that may have an important bearing in
a risk assessment.
On the other hand, I believe that scientists from industry,
environmental groups and other institutions have important
expertise that needs to be represented on scientific advisory
panels. So long as no single interest group has
disproportionate representation on an advisory committee and
has representatives that qualify for appointment based on
merit, I believe the Federal Advisory Committee Act's
requirement for ``balanced points of view'' can be effectively
met.
Fifth, priorities for peer review panels should remain
focused on research and scientific assessment.
Sixth, scientists are under no obligation to serve on
scientific advisory panels. Adding further non-scientific
responsibilities to peer review panels will make the
recruitment of qualified, independent scientists even more
difficult.
With these principles in mind, I have several specific
comments to offer regarding S. 543. They include the following.
Section 2(B) states that ``at least 10 percent of the
membership of the board are from State, local or tribal
governments.'' This is similar to a provision that was the
basis for President Reagan's veto of similar legislation in
1982.
The proposed legislation substitutes a quota for merit as
the basis for a significant percentage of advisory committee
appointments. In practice, this will distort the peer review
process.
Section 3(D) of S. 543 requires the filing of a ``written
report disclosing financial relationships and interests''
including EPA grants and contracts. This is appropriate but in
addition, it is important not only to disclose EPA grants, but
also grants or contracts supported by other Federal agencies,
private industry or other institutions.
The proposed legislation would also require that public
comments during Science Advisory Board reviews ``shall not be
limited by an insufficient or arbitrary time restrictions.'' By
providing for unlimited time for public comments, S. 543
creates the perverse incentive of driving scientific advisory
panels away from their focus on the underlying science and
toward a role of referee among competing interest groups. I
believe this provision of S. 543 should be removed.
In summary, as I reviewed the provisions of this bill, I am
having a tremendous case of deja vu that recalls my experience
as Director of the Science Advisory Board during President
Ronald Reagan's administration.
Then, as now, Congress proposed legislation that
substituted quotas for scientific merit in the appointment of
advisory committee members. Then, as now, proposed legislation
would add burdensome new requirements to the operation of
scientific advisory panels that compete with and diminish their
ability to focus on their core purpose which is to provide
independent evaluation of the quality of research and the
scientific basis of proposed criteria, risk assessments and
proposed standards.
Mr. Chairman, enactment of this proposed legislation will
waste taxpayer dollars and further divert the focus away from
the critical need of ensuring that scientific advisory panels
advising the EPA deliver qualified, timely and effective
scientific advice.
Thank you for the opportunity to testify and I will be
pleased to answer any questions.
[The prepared statement of Mr. Yosie follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Rounds. Thank you, Dr. Yosie.
Our next witness is Mr. Scott Faber. Mr. Faber, you may
begin.
STATEMENT OF SCOTT FABER, SENIOR VICE PRESIDENT, GOVERNMENT
AFFAIRS, ENVIRONMENTAL WORKING GROUP
Mr. Faber. Thank you, Mr. Chairman. And thank you for the
opportunity to testify.
By providing independent advice to the EPA Administrator,
the Science Advisory Board has played a unique role in
environmental protection for more than three decades. It is
important to remember that the SAB is primarily focused on
technical issues, not policy issues, and does not make risk
management or regulatory decisions.
Its role is limited to offering advice on the scientific
and technical basis upon which the agency makes its risk
management and regulatory decisions. The SAB makes
recommendations that are grounded in science, not politics.
We are concerned that S. 543 could inject politics and in
some cases, delay into the Board's scientific and technical
deliberations.
First, S. 543 would place the affiliation of potential
Board members ahead of their scientific qualifications by
establishing a quota for representatives of State, local and
tribal governments. SAB members are called upon to provide
their technical and professional expertise, not to represent
the views of any particular agency or organization. By creating
such a quota system, S. 543 could undermine the integrity of
the SAB and the original intent of Congress.
Second, S. 543 would allow the appointment of Board members
who have potential financial conflicts of interest, so long as
those interests are disclosed. Under current law, EPA carefully
evaluates the potential conflicts of interest of all Board
members in accordance with FACA, which does permits waivers in
some cases, and with the ethics requirements of FACA.
Like the quota system described in Section 2(b)(2)(B) of S.
543, a provision permitting Board members with conflicts would
undermine the integrity, and potentially the impartiality, of
SAB reviews.
Third, S. 543 would discourage qualified experts from
agreeing to serve on the Board. In particular, Section
2(b)(3)(D) would have a chilling effect on participation by
requiring public disclosure of SAB members' private financial
information.
Fourth, S. 543 would create significant new and unnecessary
burdens on the Board. In particular, S. 543 would require the
SAB to provide written responses to all public comments, which
in some cases can number more than 100,000 comments.
In addition, S. 543 would extend the public comment period
beyond a Board meeting, even though FACA prevents the board
from considering such comments without holding yet another
public meeting.
This could create an endless cycle of meetings and comments
that would ultimately impede and delay the Board's ability to
provide the Administrator with its scientific and technical
advice.
I am sure that the advocates for S. 543 intended this bill
to increase transparency, empower scientists, avoid conflicts
of interest and enhance the Board's scientific integrity. How,
FACA already provides important safeguards that prevent these
conflicts of interest and ensure public access and input to the
SAB's deliberations.
In summary, we are concerned the provisions of S. 543 would
undermine the SAB's scientific integrity by making Board
membership subject to organizational affiliation rather than
merit; by increasing, not reducing, financial conflicts of
interest; and by creating a needless cycle of meetings and
comments that will only serve to delay action.
Like S. 544, the so-called Secret Science Reform Act of
2015, we are concerned that S. 543 could delay and ultimately
deny to EPA the ability to improve air and water quality for
all Americans.
In particular, S. 544 would sharply limit the science EPA
can rely on by prohibiting the use of studies based on private
health data, proprietary models and confidential business
information.
S. 544 would also prohibit the use of long-term studies,
workplace exposure studies, oil and chemical spill studies, and
other research that is difficult or impractical to
``reproduce'' but that provides critical information about
health effects.
What is more, S. 544 creates a troubling double standard by
restricting the use of such studies in actions designed to
protect public health but permitting them in actions that
benefit industry, such as permit approvals and chemical
registrations.
Taken together, we are concerned these bills would
needlessly limit EPA's ability to rely upon basic science and
needlessly limit the agency's ability to subject scientific and
technical questions to review by the Science Advisory Board.
Thank you for the opportunity to testify.
[The prepared statement of Mr. Faber follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Rounds. Thank you for your testimony, Mr. Faber.
The Senators will now each have 5 minutes for questions. I
will begin.
Mr. Gomez, under ERDDAA, the Science Advisory Board is
required to be responsive to congressional requests for
scientific advice. You note that the EPA does not have
documented procedures for reviewing congressional requests.
When Congress submits requests to the SAB, the SAB should
acknowledge the request and reply that the EPA will provide a
response.
How does this lack of a clear process and reliance on EPA
to respond to Congress affect the SAB's ability to provide
Congress with an independent response to their request?
Mr. Gomez. The SAB is required under ERDDAA to provide
scientific advice to congressional committees that request it.
As you noted, we said in my statement that EPA does not have
complete procedures and it is not clear exactly how who should
do it or which office.
We also in our report have a graphic that shows what the
status is of these two requests that have come through. In one
case, EPA's office did acknowledge the receipt of the request
and then 7 months later, it also noted the remaining questions
that had not been answered.
There were 14 questions in total in the initial response.
Three were answered. EPA then said there was a previous report
that had addressed some of the themes of that request. That is
not complete yet, so EPA has noted that if there are other
questions, it will have to wait until one of the draft reports
EPA is doing is completed before the SAB can take up that
question.
Senator Rounds. Part of our role here in an oversight
capacity is to find ways in which the EPA could perhaps do a
better job of being more transparent with their dealings with
the Science Advisory Board.
Do you have any recommendations with regards to how that
process should work when we have requests such as from Congress
where the EPA is literally the location where we will get the
data back but the request is to the SAB? Can you talk about
that a little bit? Is there a process that needs to be fixed?
Mr. Gomez. Definitely, it is very much about transparency.
What we found is that when a request comes over, it was not
clear who was to respond. In one case, it was the SAB staff
office. In another case, it was EPA's Office of Congressional
and Intergovernmental Relations.
We are looking to really make it clear, make the procedures
clear in terms of how EPA is supposed to respond. EPA, under
FACA, is required to manage the agenda of the SAB. We want that
to be clear so that everyone can see who responds and what
questions the SAB should take.
EPA also has the ability to not only prioritize the
requests, but also to sequence them so that it can provide a
response because it is required under ERDDAA to do so.
Senator Rounds. You note that there have been two formal
requests from Congress asking for advice from the SAB. These
were both made approximately 2 years ago. Both of them have to
deal with issues relevant to the committee today, hydraulic
fracturing and the soon to be released WOTUS Rule.
My concern is that we are being confronted with these
issues today, yet the SAB has not given Congress the relevant
information were requested to investigate these issues in the
first place.
How do EPA regulations impact the ability of the SAB to
respond to Congress in a timely manner? Are there specific
guidelines and rules under which the EPA currently operates
that restrict the SAB from being able to come back and provide
that independent information?
Mr. Gomez. With regards to the issue of timeframes, there
is no requirement under ERDDAA that the SAB respond by a
certain time. EPA, through FACA, is allowed to set the agendas
and to prioritize what the SAB will take up. It can sequence
those requests.
To the extent that EPA has to balance the requests that it
provides to the SAB, the charge questions that it provides, and
then requests from Congress, as you have noted, can affect the
timeliness of the response. That is something EPA has to
balance.
Senator Rounds. Thank you, sir.
Senator Markey.
Senator Markey. Thank you, Mr. Chairman.
Dr. Yosie, in your testimony, you said this bill ``will
waste taxpayer dollars and will further divert the focus away
from the critical need of ensuring that scientific panels
advising the EPA delivery qualified, timely and effective
scientific advice.''
You were the director of EPA's Science Advisory Board from
1981 to 1988 during the Reagan administration. You made
reference to this bill. But when President Reagan vetoed a
similar bill in 1982, didn't his veto statement compare the
premise of the bill to a Stalinist term called Lysenkoism, in
which science is manipulated to reach a predetermined
ideologically based conclusion?
Mr. Yosie. The term to which you are referring, Lysenkoism,
refers to a gentleman by that name who was Joseph Stalin's
advisor who substituted Soviet ideology for replacing ordinary,
well understood laws about biology and so forth.
That terminology was used in the Reagan White House press
release vetoing the bill that I referred to in my testimony.
Senator Markey. Mr. Chairman, by unanimous consent, I would
like to put President Reagan's veto statement in the record.
Senator Rounds. Without objection.
[The referenced information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Markey. Thank you.
This bill requires that 10 percent of Board members be from
State, local and tribal governments. The Scientific Advisory
Board does highly specialized work. For example, the Board is
reviewing the safety of trimethylbenzene which is a byproduct
of the petroleum refining process and ethylene oxide, which is
used in the production of industrial chemicals.
Might EPA have to select Board applicants who do not have
the necessary scientific expertise if it has to meet quotas for
certain types of applicants?
Mr. Yosie. There are several comments I would make on that,
Senator Markey.
One is that if there is a 10 percent quota to have people
from States, local governments or tribal areas represented on
advisory committees, and if those representatives do not have
the sufficient scientific understanding of the issues in
review, that would require the Science Advisory Board to then
probably add another 10 percent to the size of the advisory
committee to compensate for the lack of expertise.
To me that is not a theoretical exercise. I will give you a
concrete example. During the Reagan administration, I was
responsible for organizing the peer review of the risk
assessment related to stratospheric ozone depletion, a serious
global challenge. In fact, it was one of the most successful
environmental agreements that had ever been implemented in
history.
Many of the compounds that were implicated in stratospheric
ozone were called chlorofluorocarbons. They were phased out.
There is now a substitute generation of compounds that are also
now under review for health and environmental risks.
As I look at the universe of the scientific community that
has expertise in stratospheric ozone substitute chemicals, I am
very skeptical that State or local governments or tribal areas
are going to have the requisite knowledge on those issues.
That is not to say that those organizations cannot be or
should not be represented on many other important scientific
reviews. Fracking is a good example of that. I think there are
clearly a lot of State and local issues dealing with ozone
standard development and State and local governments have
technical experts on those matters.
My concern is that by implementing an across the board
quota for every single advisory panel of the Science Advisory
Board, you will end up disproportionately increasing the size
committee, adding people who do not understand the science and
I think that is not a useful exercise in using taxpayer
dollars.
Senator Markey. Thank you, Dr. Yosie.
Mr. Gomez, in GAO's opinion, did the EPA's Scientific
Advisory Board comply with the law in its response to the House
Science Committee's request?
Mr. Gomez. EPA has not completed the response. It is
required under ERDDAA to respond to the congressional
committees. We have to wait and see.
As I noted earlier, there is a partial response. EPA has
indicated that it will address the questions in the future. We
will have to wait and see. There are only two requests that
have been sent through.
Senator Markey. Thank you.
Thank you, Mr. Chairman.
Senator Rounds. Senator Inhofe.
Senator Inhofe. Thank you, Mr. Chairman.
I remember so well because I was there and would like to
just review for a moment the chronology. First of all, we all
remember Climategate. That came in November. Just a matter of
hours after Climategate, which totally trashed the credibility
of the IPCC, in fact there are several quotes. The London
Telegraph called this perhaps the greatest scientific scandal
of our time. I could read a lot of others but I do not have
time to do that.
That is what happened and right after that is when the
Director, Lisa Jackson, in this very room when I asked her, you
are going to have an endangerment finding and it has to be
based on science. What science will you use? She said, the
IPCC. I have all that in a transcript.
It was kind of interesting because that was a matter of
just hours after this scandal took place. With that in mind,
Mr. Hadzi-Antich, in 2010, I requested an Inspector General
investigation into the EPA's endangerment finding, what I just
now described, the agency's basis for all of the climate
regulation. This is the basis we have been working with.
The IG reported the EPA did not follow proper peer review
procedures and should have sent the findings to the SAB for
review. Why do you suppose the SAB did not review the
endangerment finding? Do you have any thoughts?
Mr. Hadzi-Antich. Senator, that is the $64,000 question.
When EPA promulgated the endangerment finding that carbon
dioxide and other greenhouse gases pose a danger to human
health and welfare, it did so without any input from the
Science Advisory Board.
Again, this was a regulation of national importance because
carbon dioxide is everywhere and in everything. The EPA has
never explained why it did not send such an important finding
to the SAB before promulgating the regulation.
Senator Inhofe. I have to stop you there. You have answered
the question and I appreciate it very much.
You probably agree with the statement made by Dr. Richard
Lindzen of MIT when he said the regulation of carbon is a
bureaucrat's dream. If you regulate carbon, you regulate life
itself. Do you agree with that?
Mr. Hadzi-Antich. I do, indeed, sir.
Senator Inhofe. Mr. Gomez, based on your review of the
SAB's organic statute, if Congress requested that the SAB
review the endangerment finding or any of the climate
regulations, does the SAB have an obligation to respond to
Congress, yes or no?
Mr. Gomez. The short answer is yes.
Senator Inhofe. Dr. McClellan, on the subject of hydraulic
fracturing review, there are zero State and local experts for
the 46-member chartered SAB. There are only 3 from States. Two
of them are from California and one peer from Vermont.
A large part of the Country is under-represented in
reference to geographic diversity. Can you talk about how EPA
selects members and why it seems that well qualified experts
were excluded from the panel?
We are talking about the hydraulic fracturing panel and I
am the right one to ask that question because in my State of
Oklahoma in 1948, they had the first hydraulic fracturing in
Duncan, Oklahoma, the makeup of the committee.
Mr. McClellan. The question is?
Senator Inhofe. The question is, can you talk about how the
EPA selects members and why it seems that well qualified
experts like us are under-represented?
Mr. McClellan. I would say there is no clarity to the
process by which individuals were selected and it is obvious
that States and regions of the Country where clearly hydraulic
fracturing was used and is being used, there are knowledgeable
people, knowledgeable scientists and engineers of the process.
I have no idea why the EPA did not take advantage of the
opportunity to consider individuals from those areas with the
requisite knowledge.
Senator Inhofe. Dr. McClellan, you heard what I asked Mr.
Hadzi-Antich in terms of why do you suppose they would use, for
the science to back up the request that was made, the IPCC just
hours after the disclosure of Climategate and the scandal they
went through?
Mr. McClellan. I think that was a clear negligence on the
part of EPA senior officials in their failure to utilize the
SAB. I would say during the time period that I served on the
SAB, if we had knowledge of that, we would have ``volunteered''
our services. We would have requested the authority to proceed
with organizing a committee to address that important issue.
That is why I emphasized the importance of SAB
independently having the ability to identify issues that need
to be addressed.
Senator Inhofe. Thank you.
Senator Rounds. Thank you.
I am going to go back to Ranking Member Markey for 5
minutes and then I will move to Senator Boozman.
Senator Inhofe. Is this a second round we are starting?
Senator Rounds. Yes, but I will allow the Ranking Member to
go first.
Senator Markey. Thank you, Mr. Chairman, very much.
Just for the record, the endangerment finding was made by
the Bush administration, Administrator Johnson, back in 2008.
It was not actually accepted by Dick Cheney but that was the
finding that was made.
The ultimate endangerment finding was based upon the
National Academy of Sciences, the IPCC, other peer review
sources and it was actually upheld in court, just so we get
that out there. The original decision was made by the Bush
administration.
I also want to make it clear as well that is consistent
with decision made by Ronald Reagan back in 1982 in vetoing the
bill that you referred to, Dr. Yosie.
Mr. Faber, is it true that currently whenever the
Scientific Advisory Board wants to respond to a public comment
in writing, it has to convene a public meeting?
Mr. Faber. That is right, Senator.
Senator Markey. The Scientific Advisory Board Reform Act of
2015 would require that the Board provide written responses to
public comments it receives on its work. Is it true that if the
Scientific Advisor Board is forced to respond in writing to
every significant comment it receives, it will have to keep
convening public meetings until the public stops sending
comments and as a result, that is, in theory, something that
could drag on forever?
Mr. Faber. That is correct, Senator. It would create a
significant disincentive for SAB members to participate if they
had to respond to thousands and thousands of public comments.
Senator Markey. Is it also true that during any rulemaking
process that uses Scientific Advisory Board information the EPA
would have to respond in writing to any public comment at that
time so that the public will have ample opportunity to weigh as
well?
Mr. Faber. That is right, Senator.
Senator Markey. Mr. Gomez, your testimony said the Science
Advisory Board must respond to any congressional request from
the specified committees. Taken to the extreme, could a
committee submit an unlimited number of requests to the SAB
without regard to the amount of money appropriated by Congress
for scientific analysis? Would that pose a constitutional
problem?
Mr. Gomez. That is a possibility. That is something that
could happen. EPA, under FACA, is allowed to set the agenda, to
set the priorities, to sequence the work and to try to balance
the work from the congressional committees and also from EPA.
We view it as sort of mediating what may be coming from
congressional committees.
Senator Markey. Taken to an extreme, Mr. Faber, it could
result in paralysis?
Mr. Faber. Absolutely, you could significantly drain EPA
and SAB resources depending on the types and number of requests
that would come from Congress.
Senator Markey. Dr. Yosie, you said in your testimony, the
training and careers of scientists does not prepare them to
offer specific insight or expertise concerning non-scientific
factors.
Do you disagree that the Scientific Advisory Board should
be providing scientific advice to EPA and not advice on non-
scientific topics? Do you all agree with that? Dr. McClellan?
Mr. McClellan. Yes, I think science only and stay out of
the policy arena.
Mr. Hadzi-Antich. Yes.
Mr. Gomez. Yes.
Mr. Yosie. Yes.
Mr. Faber. Yes.
Senator Markey. This bill requires SAB members to make
their personal financial information public, introduces a
substantially new work law by requiring written responses to
public comments and prioritizes quotas over scientific merit
for membership.
I would like each of you to answer yes or no. Do you agree
that this bill could discourage scientists from participating
in scientific advisory boards, lead to long delays in the
release of SAB reports and prevent EPA from being able to
select the best scientists to serve on these panels? Mr. Faber.
Mr. Faber. Yes.
Mr. Yosie. Yes.
Mr. Gomez. We do not take a position on pending bills.
Mr. McClellan. I do not believe so, sir, no. The
requirements in place now are not really remarkably different
from that. I can say that I take a hard look every time I am
asked to serve on a Federal advisory committee as to what I
have to disclose with regard to my personal financial matters
and those of my wife.
Senator Markey. Thank you.
Thank you, Mr. Chairman.
Senator Rounds. Senator Boozman.
Senator Boozman. Thank you, Mr. Chairman.
Ranking Member, the Senator from Massachusetts, raised some
concerns about the bill. I hope we can work in good faith.
The examples you mentioned concerning the world being flat
and things like that, I think it is important to remember that
the people who were blocking that were the establishment or the
people in power.
All we are trying to do with this bill is make sure good
science is represented and that we have the complete mix of
science rather than those in power, whether this President or
the next President. We cannot do anything about past Presidents
but again, just making sure that we have a good frame work so
that everybody is represented.
There has been talk about disclosure. The bill only
requires financial disclosure of items related to the work on
the SAB, not private financial information. Again, this is
something that we can work on and make some adjustments or
whatever.
I do think there is a level of disclosure that needs to be
required so that we will know where the people are coming from.
Dr. Yosie, you mentioned the fact of State representation
and the situation that we are going to have people not
qualified. This is an effort to make sure our States in
situations where these things have tremendous impact on them,
that their scientists, the people in situations like that, have
representation on the Board.
Again, we can look at numbers and percentages. Ours is
actually less. I believe on the Clean Air Science Advisory, one
in seven is required to be from the States. This is something
not new.
As the graph demonstrated, right now I think we have a
situation where the States are not always represented.
Certainly we can find good people from the States that do have
the qualifications. Again, we would be willing to work with the
particular numbers.
Can you respond to that?
Mr. Yosie. I have several brief comments.
One is certainly during my time as Science Advisory Board
Director we routinely had representatives of State and local
governments, and in some cases, tribal areas represented on
scientific advisory panels.
The specific example that you referred to, the Clean Air
Scientific Advisory Committee, has a statutory requirement that
a State representative be included. In that specific instance,
it is appropriate because of the ambient air quality standards
review process the committee is responsible for reviewing the
scientific content for. The States have a lot of strength on
science in that particular matter.
My particular concern was not to have a blanket requirement
because the Science Advisory Board conducts dozens of
scientific reviews every single fiscal year and not all of them
are applicable to the expertise that you would find in a State,
local or tribal area.
Certainly, we had a number of State, local and tribal
representatives and certainly more than just two States.
Senator Boozman. I appreciate that. I think the graph
illustrates.
Again, we are trying to figure out how to do that? When you
were in charge, you were able to do that. How do we do that
such that we make sure there is representation? We would be
quite willing to work with anyone in that regard.
Mr. Hadzi-Antich, we appreciate your suggestions. I guess
the question I have is do you agree that the reforms in our
bill could sometimes result in a more robust regulatory action
while at other times those reforms could lead to scaling back
of proposals?
I say that because, again, we are trying to get a bill that
operates in good faith and gets the science out there. Would
you agree theoretically we could have a more robust enforcement
in some areas and less robust than currently?
Mr. Hadzi-Antich. If this answers your question, I think it
is important to have more robust enforcement. Right now there
are all sorts of obstacles to judicial review of EPA's
interaction with the Science Advisory Board.
The easy fix for that would simply be to make EPA's
interactions judicially reviewable under the current procedure
set forth in the APA. It would make it clearer for EPA, for the
SAB and for the general public.
Senator Boozman. And not bypass the SAB?
Mr. Hadzi-Antich. Exactly.
Senator Boozman. That seems to be the theme of your
testimony.
Thank you, Mr. Chairman.
Senator Rounds. Senator Inhofe.
Senator Inhofe. Mr. Chairman, let me respond to my good
friend from Massachusetts. I recognize that he was not a member
of the U.S. Senate in December 2009. That was right after the
scandal came out.
When I talk about the scandal, the endangerment finding on
which the decision was made has to be science. We asked Lisa
Jackson, then Director of the EPA, what science she was going
to rely on, so it has nothing to do with what might have
happened or not happened in 2008 or the Bush administration.
I asked her, you are going to come out with an endangerment
finding. I remember that time because I was getting ready to go
to Copenhagen as a one-man truth squad, as I recall at that
time, and I did.
I said, you have to base your endangerment finding on
science. What science will you use? I had the transcript and
all this. It was going to be the IPCC.
Let me ask one question of you, Mr. Hadzi-Antich. Does it
make sense when you have a scandal, I quoted the Guardian
saying pretending this is not a real crisis is not going to
make it go away. The Daily Telegraph noted the scandal could
well be the most serious scandal in scientific history. The
Atlantic Magazine said the stink of intellectual corruption is
overpowering.
Why do you think, knowing this, after these accusations
were made all over the world, not just here in the United
States, but primarily most of them in western Europe, they
would use that board and their science to come up with their
endangerment finding?
Mr. Hadzi-Antich. I personally do not see any reasonable
rationale for that, especially in light of those disclosures. I
do not see any reason for not having submitted the endangerment
finding to the Science Advisory Board for peer review.
Senator Inhofe. I think the IG agrees with you because in a
speech on the floor shortly after that, I said, in the IG
report on the endangerment finding ``the IG confirms the
endangerment finding was rushed, biased and flawed.'' Again, it
was in this very committee hearing that she made the decision
that was what she was going to use on which to base her
science.
I do not have anything else.
Senator Rounds. Thank you.
Mr. Markey, go ahead. Then I will finish up with closing
remarks.
Senator Inhofe. Let me ask a question of the Chair. Senator
Markey and I are very close friends. We can go back and forth
for a long period of time. We have to determine who is going to
get the last word.
Senator Markey. You can have the last word. The Majority
always has the last word.
Senator Inhofe. That is a great idea.
Senator Markey. The reason that I know that is that I used
to be in the Majority.
Senator Inhofe. Let me ask, did you like it better?
Senator Markey. Honestly, my mother always said the most
important question in life is answering the question of
compared to what, so yes. This is not as good.
Senator Rounds. Being the chairman is best because I still
get the last word.
Senator Markey. I remember December 2009 very well. I
remember it because then I was the chairman, I was in the
Majority. I was the chairman of the Select Committee on Energy
Independence and Global Warming.
Senator Inhofe and I actually debated his perspective on
CNBC, on Fox and we went on show after show debating his
position and my own position back then. I would actually
contend though that science has not been questioned
fundamentally and that the planet is dangerously warming. Last
year was the warmest year ever recorded.
Actually, off the coast of Massachusetts in January of this
year, we had temperature readings of 21 degrees above normal in
our ocean, which to a certain explains why we had 110 inches of
snow and Anchorage, Alaska only had 20 inches of snow this
year. They actually had to truck in snow to start the Iditarod
dog race this year because of that warming of the Arctic and
the change in the flow of the cold air coming down and hitting
the warm, warm ocean off the Atlantic, off Massachusetts.
This is just further corroboration of the accuracy of the
finding that the planet is warming and that there are
consequences for the planet. At the end of the day, the
question is, do we want to make sure the scientific process
does stay intact and that there is integrity to it?
I would just ask you, Dr. Yosie, what would be the
implications from your perspective if all of the scientists
were required to have their income tax returns made public?
What would be the level of success you would have in recruiting
scientists to do this work?
Mr. Yosie. You would always get some scientists who would
volunteer to serve on panels. Those would not necessarily be
those who have the most esteemed qualifications and training
for the review you are seeking to organization.
Senator Markey. I tend to agree with you. I think we have
to be very careful as we wade into this area. I think it is
absolutely imperative that we do have the best scientists and
that we also make sure they are properly vetted as well but
that there is a certain confidentiality to their own personal
records or else I think we will have a significant
discouragement factor that will limit the full pool of the best
scientists that we have in the United States to be giving
advice to the Federal Government.
I think that is true whether it is a Democratic or
Republican President. We want the best people to be
volunteering but we also have to protect them from being turned
into political pinatas. If they are willing to serve, I do not
think personal attacks upon their integrity should be a part of
this process.
I would just say that from my perspective, I think this is
a highly illuminating hearing. I think moving forward, we
should just exercise great caution so that we do not create a
discouragement to the best and brightest participating in a
very important public process.
I thank you, Mr. Chairman.
Senator Rounds. Thank you.
Senator Boozman.
Senator Boozman. I appreciate that, Senator Markey. We
really would be very willing to work with you in that regard.
Certainly, we do not want that to happen either.
Dr. Yosie, you do agree though that financial disclosure of
items related to their work on the SAB should be disclosed?
Mr. Yosie. That is important to maintaining the integrity
of the process.
Senator Boozman. That is truly what we are trying to do.
That should not dampen anybody from serving. That probably will
dampen some from serving, but that is probably an appropriate
damper.
Mr. Yosie. It is a judgment call. I think we want to do a
thorough vetting of people who are under consideration for
appointment to these panels, but I think being overly intrusive
in terms of stock portfolios or income tax returns, I think is
an abuse.
I think you will see highly qualified and talented
scientists who run away from wanting to be appointed to such
processes.
Senator Boozman. We hope we can work with all of you on
this and again, get a product that is good in the sense that we
have integrity with the process. That really is the key so that
we do not prevent some of the things you mentioned earlier.
Thank you.
Senator Rounds. Senator Inhofe.
Senator Inhofe. Thank you, Mr. Chairman.
We have done this so often now, I do not need notes.
I can remember in one of our debates, going from memory,
approximately every 30 to 40 years we do have changes in
patterns. In 1895 was the first time they started using the
term global warming because things got warming for a 30-year
period from 1895 to about 1918. Then we went into a cooling
period. That lasted until 1945. You are talking about
approximately the same length of time.
They actually used another ice age. I remember even the
covers of magazines like Newsweek and others, each time this
happened, they came up with Alaska polar bears dying and all
these things. Then they completely reversed it when another 30-
year trend comes.
In 1945, that was the year of the greatest surge of
CO2 at that time that had been recorded, right after
World War II. That precipitated not a warming period but a
cooling period that lasted until about 1975. We know what has
happened since that time.
Climate is always changing. We understand that. The other
day on the floor, I made that point when Senator Whitehouse had
an amendment. I said, yes, I agree with the amendment because
the amendment was saying climate is changing. Everyone
understands that.
The issue here, though, was, in order for them to do what
they wanted to do on this massive change, keep in mind this was
not always Democrats because the first bill introduced was the
McCain-Lieberman bill. The last time I checked, Lieberman was
an Independent and McCain was a Republican. That was in 2002
and they reintroduced in 2005.
It has been reintroduced and my good friend from
Massachusetts has had a bill and some came over from the House
when he was in the House and some did not. Nonetheless, people
are getting kind of worn out on this and all the hysteria that
the world is coming to an end and the fact this has been going
on for a long period throughout recorded history.
Now we have a situation where the public is saying, we are
not as interested as we were. The last Gallup poll was about 3
weeks ago. Of the environmental concerns, global warming was
next to the last. Going from memory, I think it was out of 40
concerns. That used to be No. 1 or No. 2.
I think there has been a lot of doubt. The American people
are looking at this. Confession is good for the soul. I say to
my friend, Senator Markey, back when this first started, I
assumed everything was correct until in your State of
Massachusetts, Dr. Richard Lindzen, an MIT professor came out
with the quote I gave about regulation of carbon is regulating
life. He established some doubt.
On the Senate floor, I talked about that and scientists
started calling and saying why they were rejected from
participation in the IPCC. It is on the record. I talked about
this 10 years ago.
Now we have the situation where in December 2009, the
Administrator of the EPA, knowing she had to rely on some
science to come up with an endangerment finding, which
President Obama wanted it to happen, I asked her at that time
on what science she was going to base it and that was the IPCC.
Again, I will not repeat all of these things. I have 40-
some criticisms on Climategate associated with that, trashing
the science of IPCC. It does not serve any useful purpose to
repeat that at this time.
That is the only thing I was trying to get across. It was
based on science that I think was flawed science. Many of the
scientists agreed with me.
Senator Markey. Would the Senator yield?
Senator Inhofe. Sure, I will yield.
Senator Markey. I agree with you that confession is good
for the soul. It took 350 years for the Catholic Church to go
to confession. Finally, Pope John Paul II pardoned Galileo
which was great news in the Catholic Church that finally
confession had taken place.
The good news is now that Pope Francis, a Jesuit, who is a
chemist, is going to issue an encyclical on climate change. He
is convinced of the science so we have come a long way as a
church, especially when they name a Jesuit as the Pope who was
a chemist.
I think there is increasingly going to be that linkage.
Senator Inhofe. What is the question?
Senator Rounds. Actually, the amount of time you could
yield to him has now expired.
Senator Markey. I have found in the Senate that many
questions actually come in the form of answers when Senators
are speaking.
I thank the Senator.
Senator Inhofe. Let me say that I genuinely have a love for
this guy. It is the hypocrites that I do not like. He is not a
hypocrite, he really believes this stuff.
Senator Rounds. It is nice to be the Chairman because I get
the last word.
If there is anything I think comes from a discussion like
this where there are not a lot of people here, but those who
are, clearly have an interest in working and solving problems.
There was a term used today that I think we could all learn
from. I believe the term was Lysenkoism. If there is one thing
we all agree on, it is that we do not want Lysenkoism. You will
find there are folks right now who will look at what has
happened at the EPA and there is a question of whether or not
they have actually used the Science Advisory Board
appropriately in the manner in which everyone, Republican,
Democrat or Independent, wanted it done in the first place.
If you want credibility and trust in government, you have
to be able to look at the independent science advisors, trust
them, trust they come from multiple facets of life with a great
deal of experience.
Senator Boozman has proposed a bill in which he wants to
spread that out. He wants it across the Country. He is
frustrated because what he sees right now is it does not appear
as though with an open process, people are trusting the science
is being utilized and accessed the way it was intended in the
first place.
The question is whether or not those individuals who serve
on it are being picked in a fair manner. Those are valid
questions and are something I believe an oversight committee
has the ability and responsibility to ask the questions.
We ask the question because neither Republicans nor
Democrats want Lysenkoism. The word of the day, Lysenkoism, is
something I think we can all agree is something we do not want
when it comes to the EPA or any other agency of the Federal
Government creating laws, regulations or otherwise influencing
the average lives of American citizens.
With that, I do have some additions to the record. I ask
unanimous consent to submit two additional statements for the
record, a statement from the American Chemistry Council and a
statement from the Council of State Governments West. Without
objection, so ordered.
[The referenced statements follow:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Rounds. Once again, I would like to thank our
witnesses for taking the time to be with us today. I would also
like to thank my colleagues who attended this hearing for their
thoughts and their questions.
The record of this hearing will be open for 2 weeks which
brings us to Wednesday, June 3, 2015.
With that, Ranking Member Markey, thank you. Thank you
other members for your participation today.
With that, this hearing is adjourned.
[Whereupon, at 11 a.m., the subcommittee was adjourned.]