A Viper Lurking in the Farm Bill: So-Called Sound Science Provision Carries Anti-Regulatory Poison

The biggest lie in Washington might be the claim that government regulation is strangling business and making it impossible to earn a profit. The clearest evidence that this is a lie is the fact that business profits are at an all-time high. The chiefs and bosses of those businesses are doing very well, too, with CEO pay soaring far beyond any rational relationship to the pay of average workers.

Yet “too much regulation” remains the cry of the Chamber of Commerce and scores of other business lobbying groups, and it gets taken seriously by the media and by Congress, which is always looking for some reward to give corporate lobbyists for their electoral support. The latest goody is a provision in the House farm bill poorly named the ‘Sound Science’ provision, which is intended to damage the ability of federal agencies to regulate anything that relies on a scientific justification.

Section 12307 requires agencies to develop guidelines not just for making scientific judgments, but for governing how “scientific information is considered.” These guidelines would be wasteful make-work in any case because the agencies are already subject to direction by OMB and the Office of Science and Technology Policy. But they are much worse than that, because they open up every regulatory action, including “the listing, labeling, or other identification of a substance, product, or activity as hazardous or creating risk to human health, safety, or the environment,” to judicial intervention.

If the manufacturers of diacetyl wanted to keep OSHA or the National Institute for Occupational Safety and Health from warning that the chemical, which causes debilitating popcorn lung syndrome, is a hazard, the corporations could sue in federal court to block the listing on any of a number of vague grounds—that the agency didn’t have proper procedures in place, that it didn’t follow the procedures it does have, that it didn’t provide an “opportunity for public comment on all relevant scientific findings,” that each finding wasn’t peer-reviewed, that it didn’t give greatest weight to experimental data, and a host of other possible challenges.

Thus, instead of agency experts and public health officials, scientifically untrained federal judges would be forced to make decisions about the scientific adequacy of data, procedures, and reviews, for no real purpose other than delay and harassment.

No case has been made that federal agencies are failing to use sound science. This is about delaying or preventing regulation, not about improving it.

And I can’t help mentioning how hypocritical it is for business lobbyists and congressmen who complain about trial lawyers rushing to the courthouse to create a new cause of action so that corporations can rush to the courthouse to protect their interests. It seems that for some members of Congress, litigation to compensate the victims of corporate wrong-doing is just not as worthy as litigation to hamstring the agencies established to protect the public health and to protect the interests of corporations to operate without regulatory oversight.