During the last five years, the Bush Administration has systematically attacked scientific integrity in all aspects of government regulation. They have relied on junk science, innuendo, and anecdotes to support industry-friendly environmental policies or weakened environmental safeguards. This trend has only increased as the Administration’s friends have increasingly turned to a four-year-old law with a misleading name, the Information Quality Act (IQA), in their ongoing effort to weaken federal environmental regulations.
IQA in Theory and Practice
The IQA (also known as the Data Quality Act), a seemingly innocuous law passed as a rider to a 2001 appropriations bill, required the President’s Office of Management and Budget (OMB) to establish guidelines for federal agencies to maximize the quality, objectivity, utility, and integrity of information that they disseminate to the public. OMB’s guidelines were promulgated in 2002, and, in addition to requiring federal agencies to adopt their own IQA rules, require agencies that disseminate so-called “influential” information to provide a “high degree of transparency about data and methods to facilitate reproducibility of such information by qualified third parties.”
In a few cases, the IQA has been rightfully used to stymie agencies’ reliance on clearly flawed data. In response to an IQA challenge filed by Public Employees for Environmental Responsibility (PEER), the Fish and Wildlife Service was forced to acknowledge it had consistently relied on flawed habitat and population data concerning the habits of the highly endangered Florida panther. In addition, the Federal Emergency Management Agency routinely makes minor data corrections as a result of petitions submitted to the agency pursuant to the IQA.
In the overwhelming majority of cases, however, the IQA has been used by industry groups and political interests to challenge agency data that supports common sense regulation in many areas, including the environment and public health. For example, in 2003, the Salt Institute, an association of salt producers and manufacturers, submitted an IQA petition to the Department of Health and Human Services challenging dietary guidelines that — surprise — urged Americans to lower their intake of salt in order to reduce the risk of hypertension. As another example, in deliberating whether to list the greater sage grouse under the Endangered Species Act, Julie MacDonald, a Department of Interior (DOI) political appointee with no formal biological education or training, tried to quash data showing that the greater sage grouse needs diverse sagebrush ecosystems to survive, on the basis that such information violated the IQA.
While the IQA cases brought by industry (on issues as varied as salt, asbestos and pesticides) have weakened environmental and human health provisions, the few cases filed on behalf of the environment have changed little on the ground. In the case of the panther data, the FWS admitted the data was flawed, but then announced that no agency decision or biological review would be reexamined as a result of PEER’s ostensibly “successful” IQA challenge. Clearly, there are some problems with the IQA.
In fact, these examples only hint at the Act’s problems and raise doubts about using the IQA at all as a tool to protect the environment. Rather, a serious overhaul or repeal might be in order. To begin with, the standards imposed on agencies by the IQA — i.e., that they ensure the “quality,” “objectivity,” “utility,” and “integrity” of information that they disseminate to the public — are utterly vague and totally subjective. There is no direction as to what was actually intended by such terms, since the IQA was passed as a rider to a 2001 appropriations bill without any hearings or Congressional debate, and therefore lacks any legislative history.
In addition, when it comes to data that informs decisions that impact the environment, the Act has been read to impose higher standards for scientific information than those found in our nation’s existing environmental laws. For example, the Endangered Species Act requires federal agencies to rely on the best scientific information “available” and to draw all inferences in favor of imperiled species. The best information available is not always peer reviewed. Yet, Ms. MacDonald interpreted the IQA to require FWS to rely on peer reviewed information to support a listing of the grouse — a much higher standard that effectively put the burden of proof on the species. For such species, just as with many other environmental concerns, such ironclad data are rarely available. Such an approach also conflicts with the so-called “precautionary principle,” arguably inherent in many of the nation’s environmental laws and regulations, which requires that when probabilities cannot be calcluated with reasonable precision, decisions that could lead to great harm should be avoided.
In addition, industry groups exploit the IQA’s requirement that scientific studies must be reproducible, by designing meaningless studies to confound good data within the literature. Such junk science was used in an IQA challenge to the EPA’s restrictions on the pesticide atrazine, which was linked to hormone disruption by separate studies in three countries. Atrazine’s manufacturer conducted its own studies that did not reproduce these results, and convinced EPA against restricting atrazine’s use. (The pesticide is banned in Europe because of its health effects.)
Furthermore, at least two federal district courts have ruled that IQA challenges to the quality of information disseminated by federal agencies should take place only in administrative proceedings before agencies, and not in the courts, thereby seemingly insulating agency IQA determinations from judicial review.
Consequences of IQA Loopholes
Neither the IQA itself, nor the OMB or other agency guidelines, provide a means for interested parties to defend the quality of information they submit to a federal agency when that information is later attacked through an IQA challenge. For example, when the Partnership for the West — a coalition of western industries and economic interests — attacked through an IQA challenge the quality of information in the petition to list the sage grouse under the ESA, the conservationist petitioners were never so much as informed of the Partnership’s challenge, let alone afforded any formal opportunity to respond and defend the quality of the data supporting listing.
These problems create a perfect storm of conditions for any administration to make politically convenient decisions that reward friends but which do not necessarily rely on the best data and information available. As PEER’s Executive Director, Jeff Ruch, told a House Subcommittee in July, “the IQA produces meaningful relief only if the agency feels like giving it.”
We should not be so innocent to think that unseemly use of the IQA won’t happen. In February, PEER and the Union of Concerned Scientists released the results of a survey of FWS biologists, ecologists, and other science professionals, which revealed that over half had been induced to reverse or withdraw scientific conclusions through political intervention by commercial interests. A similar survey of scientists within the National Oceanic & Atmospheric Administration Fisheries Services produced similar results. It should also come as no surprise that the IQA is supported by entities such as the Salt Institute, Partnership for the West, and the Chamber of Commerce, the latter of which testified before Congress in support of the IQA in July, or that the IQA has been strongly criticized by progressive groups and legal scholars. OMB Watch released a report on the IQA’s first year of implementation, and found the law to be riddled with problems. Even PEER, one of the few non-industry organizations to use the IQA, told Congress that it found the IQA to be flawed, only slightly effective, and profoundly weak.
Recommended Reforms
Only in the unlikely event that the IQA’s many problems could be remedied through legislative action following informed debate and hearings in Congress should the IQA be given any legitimacy at all. Such reforms must include, at a minimum, clear standards for ensuring the quality of agency-disseminated information, and provisions that allow for judicial review of agency decisions made under the IQA, as well as for the participation of interested parties in the administrative process. If such reforms were passed following an informed debate, the IQA could become a powerful tool for any organization to participate in the democratic process, and, presumably, could even result in higher quality information flowing from federal agencies. Until then, and perhaps even then, the IQA will remain a subjective, politically-driven, and expensive albatross on an already-strapped federal government.
— Amy Atwood is a lawyer with the Western Environmental Law Center in Eugene, OR. She is also a member of the Wildlands CPR Board of Directors.