It’s like a Russian nesting doll of bad policy: House Republicans have contrived to take one of the most anti-science bills in memory and then place it inside one of the most anti-democratic legislative vehicles available. It’s part of an attempt to ram through into law new rulemaking requirements that would benefit the already-healthy bottom lines of their corporate benefactors at the devastating expense of the health, safety, pocketbooks, and perhaps even lives of the American public. That’s what is at stake with an obscure three-page rider—Section 12307, euphemistically entitled “Ensuring High Standards for Agency Use of Scientific Information”—in the 700-page House version of the Farm Bill (H.R. 2642, the Federal Agriculture Reform and Risk Management Act of 2013) that is currently undergoing conference committee consideration to resolve differences between it and the Senate version of the Farm Bill. (See page 654 of the bill for the rider—seriously, page 654!—which is available here; warning, this is a huge PDF.)
This anti-science rider began life as a stand-alone anti-science bill (also) euphemistically entitled the “Sound Science Act” (H.R. 1287), originally introduced by Rep. Stephen Fincher, a Tennessee Republican. If enacted, it would require all agencies (including independent agencies) to develop a conspicuously complex set of guidelines, which would purportedly improve agencies’ use of “science” in “policy decisions,” a term the rider defines very broadly to include virtually any type of agency activity, including non-legally binding guidance documents. The rider states that these policy decisions may not take effect unless they are in strict compliance with those guidelines. The rider appears to make this requirement judicially enforceable by declaring that policy decisions that fail to comply with an agency’s guidelines are “arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.” (Because this section of the rider is so amateurishly drafted, it’s not entirely clear how this mechanism will work in practice. What is clear, though, is that if the rider becomes law, this section is sure to invite lots of costly, time-consuming, and wasteful litigation.)
How do we know if a given policy decision complies with an agency’s guidelines? That’s where the real trouble with this rider begins. The rider would mandate that these guidelines spell out all kinds of requirements. For example, any science information that the agency “considers” in making a policy decision must be developed through “well-established scientific processes” and policy decisions themselves must be based on the “best reasonably available” information.
It is not clear what problem these various requirements are trying to solve, but it is clear what problems they would create: They would be an open invitation for deep-pocked corporate interests to bring endless challenges to many agency actions that involve any use of science. Terms like “best reasonably available” science information and “well-established scientific processes” are vague, and the rider fails to define them. With just a modicum of creativity, industry groups could find countless ways to claim that the scientific information an agency used in a given policy decision isn’t the “best reasonably available” or that that scientific information wasn’t developed according to “well-established scientific processes.” To make matters worse, industry can even challenge information the agency “considers”—even if the agency ultimately decides not to rely on that information in making the policy decision. This would only expand the universe of potential challenges that corporate interests could bring.
Corporate interests would have a strong incentive to inundate agencies with as many challenges as possible, too. Bringing these challenges is a small price to pay, given their deep pockets, and in any event would be cheaper than complying with new environmental, health, and safety standards.
In anticipation of these challenges, agencies would spend even more time, money, and effort in a vain attempt to insulate their policy decisions against attacks. These efforts would contribute to the existing problem of “paralysis by analysis” that already prevents these agencies from carrying out their statutory missions of protecting people and the environment in a timely and effective manner. Even if an agency does somehow issue a critical safeguard, it is likely to be subject to the various scientific challenges noted above. Courts may continually send agencies back to the drawing board on these rules to “reconsider the science involved.” In the worst cases, agencies may simply throw their hands in the air and abandon such rulemakings entirely.
If this rider were to become law, it wouldn’t be too much of a stretch to say that critical rulemakings currently in the works may never see the light of day. Opponents of health care reform and Wall Street reform would be handed a powerful tool for obstructing their implementation. Similarly, the Obama Administration’s efforts to make any progress on climate change would likely be stopped in its tracks.
So, how could a bill this far-reaching, this radical ever become law? It couldn’t. At least not through regular order.
After Rep. Fincher introduced the bill last March, it went nowhere, stuck in committee without a vote, much less a hearing. The reality is this bill is so radical that it might not even pass the House of Representatives—even with its large cohort of anti-science Republicans—and it certainly wouldn’t go anywhere in the Senate. In any event, standing alone, Rep. Fincher’s bill was dead on arrival.
So, Rep. Fincher resorted to an old, anti-democratic trick: He managed to have it attached as a rider to a huge, must-pass bill in the hopes that it would either be overlooked or grudgingly accepted as the price of making legislative progress on important policy matters. In other words, he sought to have it “ride” into effect on the back of much larger and more important bill. Rep. Fincher’s anti-science rider has only marginal relevance at best to the Farm Bill, which its authors have described as “An Act to provide for the reform and continuation of agricultural and other programs of the Department of Agriculture through fiscal year 2018”—and that relevance arises only because the rider is so far-reaching.
This is no way to carry out the people’s business. If Rep. Fincher and other supporters of this anti-science rider believe so strongly in it, then let them have the courage of their convictions and try get enacted into law through regular order. They should rely on advocacy and persuasion—not obfuscation and tricks—to convince their congressional colleagues and the president to support a stand-alone bill.
For its part, the conference committee currently considering the Farm Bill ought to take a close look at and reject the anti-science rider and any other irrelevant provisions that have been tucked in. Allowing these provisions to go into law without any serious legislative consideration would be an affront to democratic principles. And, it is recipe for instituting bad policies that will undermine the public interest.