458 1 MAY 2020 • VOL 368 ISSUE 6490 sciencemag.org SCIENCE
Critics say EPA’s ‘transparency’
rules would favor industry
Agency could consider studies available only by
cumbersome Freedom of Information Act requests
REGULATORY SCIENCEW
hat is a public document? That
question is the latest battleground
in a long war over a U.S. Environ-
mental Protection Agency (EPA)
proposal to change the kinds of
studies and data the agency will
consider as it shapes its regulations.
The proposal, which EPA says is meant to
promote transparency and “sound science,”
would generally bar the agency from using
data that are not publicly available (Science,
13 March, p. 1180). Critics already worry
the policy would allow EPA to ignore stud-
ies that have been key to developing tighter
health and safety rules, such
as air pollution standards,
but rest on difficult-to-release
information, such as confi-
dential patient records. Now,
they have a new worry: EPA
has proposed a definition of
“publicly available” that could
allow the agency to exclude
those studies but continue
to use others—often from
industry—even if their data
are effectively hidden.
The definition, spelled out
in a 3 March EPA notice seek-
ing additional comments on
the broader transparency proposal, says in-
formation available through “disclosures to
the general public that are required to be
made by federal, state, or local law” is fair
game for regulators. In practice, that means
the agency can use data and documents that
outsiders can obtain only through requests
made under the federal Freedom of Informa-
tion Act (FOIA).
The transparency proposal is open for
public comments until 18 May, but critics
are already weighing in. “To say that some-
thing is FOIA-able is actually admitting
that it is not publicly available,” says Steven
Aftergood, who directs the Project on Gov-
ernment Secrecy at the Federation of Ameri-
can Scientists. “If it were, a FOIA request
would be redundant.”
The FOIA process, he and others say, can
be costly, cumbersome, and slow. EPA oftentakes months or years to fully respond to a
FOIA request, says Jennifer Sass of the Natu-
ral Resources Defense Council (NRDC), one
of many groups that routinely files requests.
And because the law gives federal agencies
substantial leeway in deciding what informa-
tion they must release (it allows agencies to
withhold personal data and trade secrets, for
example), Sass notes that her group and oth-
ers often have to go to federal court to force
agencies to cough up documents.
Environmental groups fear that although
the policy could bar the use of academic
studies that are published in the open litera-
ture, it could allow EPA to continue to use
industry data that might justify more relaxed
regulations. For example, EPA
routinely requires companies
to submit unpublished studies
and data when assessing and
regulating chemicals. That in-
formation can end up “behind
a FOIA wall that is ... largely
impenetrable to the general
public,” Sass says.
As a result, outsiders are
often left in the dark about
what data EPA is using to
shape rules, says NRDC’s
Lucas Rhoads, who tracks
pesticide regulation. “With-
out the documents,” he says,
“it’s hard to make substantive comments on
what EPA has proposed.”
Letting EPA decide what to disclose is
fine with Steven Malloy, a Washington,
D.C.–based lobbyist and libertarian politi-
cal commentator who has advocated for
EPA’s transparency proposal. “That’s how
FOIA works,” he says. Malloy doubts EPA
would use the law to deny requests for re-
search data. “If you just want the raw en-
vironmental data, I can’t think of a reason
that the government wouldn’t give it to
you,” he says.
Aftergood and Rhoads, however, suggest a
much better way for EPA to meet its trans-
parency goal would be to create a searchable,
online library of all documents and data it
uses in its work. Aftergood even proposes a
simple test for deciding whether EPA is be-
ing transparent: “If I look it up, I’ll find it.” jBy Jeffrey Mervis“To say that
something is
FOIA-able is
actually admitting
that it is not
publicly available.”
Steven Aftergood,
Federation of
American Scientistselists. “That’s hard to do in person because
everyone is up [on stage] and you can’t have
a backchannel conversation.”
During the audience question period, the
moderators didn’t open up the virtual floor
for anyone to speak. Instead, they asked audi-
ence members to type their questions, and “a
little army of people reading chat windows”
prioritized the most insightful inquiries. “It’s
not just one person who ran up to the micro-
phone after a talk and takes up all the air-
time,” Altman says.
Prosser had a similar experience with her
chemistry talk, noting that because mod-
erators could screen questions from the
audience, she didn’t face the “nonquestion
questions you sometimes see at meetings.”
Scientists acknowledge that virtual con-
ferences can’t entirely replicate the confer-
ence experience, which normally involves
impromptu meetings in hallways and other
social get-togethers. “Humans are a social
species,” notes Jennifer Kwan, a clinical fel-
low at the Yale School of Medicine. “We’re
used to being able to see body language, be-
ing able to interface with someone in per-
son.” So virtual meetings might lose some of
their appeal once stay-at-home requirements
loosen, she says.
Even so, Kwan sees growing support for
online opportunities. She organized a virtual
session in April for the annual meeting of the
American Physician Scientists Association,
one of the first large conferences to go virtual.
Close to 500 attendees tuned in to her ses-
sion, which featured Francis Collins—director
of the U.S. National Institutes of Health—as
a guest speaker and focused on ways to sup-
port early-career scientists amid the turmoil
of the coronavirus outbreak. Kwan says the
success of her society’s meeting “has spurred
the discussion of [hosting] additional virtual
sessions in the future.”
For some societies, the COVID-19 crisis
hasn’t so much started discussions about
virtual conferences as accelerated them. Last
fall, the Cognitive Neuroscience Society’s gov-
erning board began to ponder how to make
future meetings more accessible, affordable,
and environmentally friendly. “A lot of our
membership had started to ask about our
carbon footprint,” says George Mangun, a
cognitive neuroscientist at UC Davis who sits
on the society’s governing board. Originally,
board members discussed holding a portion
of the 2021 meeting virtually. But when the
pandemic hit, they adjusted their strategy
and now plan to hold the entire 2020 meeting
online in May. If the conference succeeds this
year, Mangun notes, it will further solidify
the society’s march toward virtual meetings.
Altman agrees. “Whether we like it or not,
the scientific community is going to very
quickly come to expect this.” j
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