Theme #4: Protection of the ‘public interest’ (constitutional protection of individuals’ inherent right to ‘due process of law’) in an era of expanding international regulatory cooperation depends on the establishment, maintenance and oversight of mutually transparent risk-based best available science (“BAS”) and economic cost-benefit-analysis driven government regulatory and technical standards regimes that assure meaningful public participation and input. These regimes must provide public notice and comment mechanisms of sufficient duration prior to agency adoption of final rulemakings, and must offer adequate data/information quality review mechanisms to ensure the validity and reliability of agency and third-party-generated science & technical data/information prior to government dissemination and use of it as the bases for agency decision-making, including economically significant rulemakings and administrative enforcement actions.
In the United States, the credibility of the peer review process underlying regulatory science is an indispensable element of government regulatory transparency. Government regulatory transparency can be secured through various legal mechanisms. They range from judicially reviewable administrative law processes and procedures mandated by the Administrative Procedure Act, the Freedom of Information Act, the Information Quality Act/Data Quality Act, the Federal Advisory Committee Act and the Government in the Sunshine Act, and applicable agency implementing regulations and/or guidelines, to legislative review of ‘major’ executive agency regulations pursuant to the Congressional Review Act which has rarely resulted in enactment of a disapproval resolution (pp. 8-11).
A 2009 Presidential scientific integrity memorandum and 2010 White House Office of Science and Technology Policy (“OSTP”) explanatory guidelines build upon these transparency mechanisms and are a step in the right direction, but federal agency implementation is the ultimate key to their success. Congressional redrafting of the Regulatory Accountability Act (H.R. 2122 (2013)) and (S. 1029 (2013)), in an effort to promote greater government regulatory transparency and improved regulatory review processes that address prior criticisms of the Act’s initial version ((here), (here) and (here)), would also build upon these transparency mechanisms, but the enactment of these bills into law remains uncertain due to ongoing opposition based mostly on ideological grounds (here), (here), (here) and (here). Since, as the U.S. Government Accountability Office (“GAO”) has found, “there is no bright line that separates international regulatory cooperation activities from [domestic] regulatory programs…[and] U.S. agencies share scientific and technical information with their foreign counterparts which can inform all stages of the rulemaking process” (p. 18), prospective international regulatory cooperation should be pursued only with those nations whose governments first establish and effectively implement equivalent transparency mechanisms.
“This is the most transparent administration in history […] I can document that this is the case…Every visitor that comes into the White House is now part of the public record. Every law we pass and every rule we implement we put online for everyone to see“.
Members of the American press and watchdog organizations, however, have since concluded that this is not the case at all (here), (here), (here), (here), (here), and thirty-eight news organizations have protested in writing directly to the President about his administration’s (including EPA’s) obstruction of journalists.
Theme #4 of ITSSD’s Programs focuses, in particular, on this administration’s record of regulatory science (rule)-based non-transparency discussed in more detail, in the context of the Freedom of Information Act (“FOIA”) and Information Quality Act (“IQA”), as set on the following pages: