The Senate Republican Policy Committee (RPC) appears to be preparing for a battle over the Data Quality Act (DQA), as it recently released a very slanted background document that praises the law’s benefits and attempts to bolster its legitimacy.

Contrary to its intentions, the Jan. 18 RPC paper actually supports criticisms that OMB Watch and other public interest groups have leveled at the DQA since the law’s inception — that it is a tool to hinder regulation through attacks on information. The text of the paper states, “Another purpose of the law was to prevent ‘regulation by publication,’ where federal agencies publish unsupportable claims that achieve a regulatory impact without having to go through the regulatory process.” The RPC is claiming that agencies are creating pressure on companies to take action without formally producing a rule that requires action, but instead by merely publishing information. There is no evidence agency publications can achieve the same impact as a regulation or that any agency has published “unsupportable claims.”

However, there is mounting evidence that the business community has used the DQA to delay and derail regulations by attacking and weakening the publications uses as foundations for those regulations. An OMB Watch report documented the use of the DQA for anti-regulatory purposes by regulated industry.

The RPC report cites a challenge filed by the Competitive Enterprise Institute (CEI), an industry-funded organization, as an example of how the DQA can ward off bad information. But the example demonstrates how industry attempts to use the DQA as a means to silence discussion of important public protections. In this case, CEI submitted petitions to several agencies challenging the quality of a peer-reviewed government global warming report. The issue of global warming is highly controversial, with disagreement on its existence within the policy and scientific communities. CEI raised complaints about the peer review process and the accuracy of data models used in the creation of the report. However, instead of recommending corrections for the challenged information, as required under the DQA, CEI requested the complete removal of the document from public distribution.

The government’s global warming report did not represent “regulation by publication.” The report was a best effort to define the global warming issue based on the best information and methods available at the time, and did not have direct implications for the operations of regulated industry. The report, as do most scientific studies, represented a stepping stone to better understanding of the issue, new research and improved models. Removing the information stifles dialogue on the issue, and does nothing to correct any misinformation in the document. CEI filed a lawsuit over the challenge and settled the case by getting a disclaimer placed on the report noting that it did not comply with the DQA. In reality, the DQA has not garnered improvements in data quality. Instead, it has created more burdens on agencies and has given industry a tool for derailing, delaying and diluting the regulatory process.

The RPC also looks to correct supposed misperceptions about the DQA in its report. Most notably, it asserts that the DQA was not a last-minute rider that had no debate in Congress (it was attached to the Treasury and General Government Appropriations Act for Fiscal Year 2001 at the last second by Rep. Jo Ann Emerson (R-MO)). The RPC explains that the DQA was simply another version of the data quality measures contained in the Paperwork Reduction Act of 1995, and that several hearings were held on that law. Although the Paperwork Reduction Act does mention quality of information several times, it does not contain any instructions for specific criteria or the creation of a mechanism to allow companies to challenge particular information. Therefore, any hearings or analysis could not have explored the issue substantively since the law only vaguely alluded to the principle. The RPC’s claim that this was equal to debate on the DQA is unconvincing.

It appears that the some business groups and conservatives will also attempt to revisit the issue of judicial review under the DQA for petitioners seeking the correction of information. Currently the law contains no mention of the issue. This lack of language in the law caused two judges to rule in 2004 that the law does not provide judicial review. The Department of Justice agreed, saying that no statutory basis for federal court review exists, as the DQA does not contain any provisions allowing private parties to enforce the statutory terms in court. The industry groups that have filed suit against the government are sure to support any move to incorporate judicial review under the law.