CRE is not supportive of the EPA science initiative at this time because it creates a new regulatory regime without first exploiting to the fullest the existing regulatory regime which consists of the Data Access Act and the Data Quality Act.
With respect to the existing regulatory regime please note:
(1) OMB neutered the Data Access Act when it opined that the DAA only applied to reports which carry the effect and force of law; the EPA initiative is in violation of OMB Circular A-110 which implements the DAA.
(2) DOJ neutered the Data Quality Act when it declared that the denial of Requests for Correction were not judicially reviewable.
CRE believes that actions should be taken to correct the aforementioned shortcomings prior to initiating a new regulatory regime which has neither the force or breadth of the programs contained in existing statutes. Then if a significant void exists fill it– but only after it is demonstrated that the above statutes do not correct the problem. Not only is the CRE remedy statutorily based and therefore difficult to rescind with a change in Administrations but it is a government-wide mandate not one applicable to only EPA.
Finally CRE is most interested in implementing only those programs which will withstand the critical review of a new Administration. The CRE remedy holds its own in a number of venues. With respect to the Data Access Act, the UK has a far more expansive program than the US. With respect to the Data Quality Act, on May 2, the Administrative Law Section of the ABA sponsored a program on the Act, not one attorney questioned the statement that the Data Quality Act is judicially reviewable under the Administrative Procedure Act. [Also see this post.]
The aforementioned statues have been on the books for two decades and have been shunned by both Democratic and Republication Administrations; the EPA proposal follows lockstep with the actions of its predecessors with respect to ignoring two statues which address the subject area of interest.
N. B.
Also read this post.
The ultimate outcome of the EPA NPRM will have an impact on a number of initiatives, including evidence-based policymaking.
