One Face of the Regulatory State

Recent talk about “over regulation” includes discussion of the “fourth branch” of government – the unaccountable and faceless bureaucracy. Well, PCTC has seen some of those bureaucratic faces up close. The discussion about over regulation is focused on cases where affected parties have some avenues to push back – the government publishes the proposed regulation and asks for comment, or the affected parties can take the government to court, or the affected businesses are big enough to get the attention of politicians. But government bureaucracies have ways of creating non-regulatory regulations. The Center for Regulatory Effectiveness calls some of these methods “regulation by litigation”, “regulation by information”, and “regulation by appropriation”.

Everyone is familiar with the regulatory agencies of the federal government. HUD creates and administers housing regulations based on laws passed by Congress. Transportation administers laws covering planes, trains and automobiles. EPA develops rules to implement environmental laws such as the Clean Air Act and the Safe Drinking Water Act. But there are also many programs and even entire agencies that have no regulatory function. The US Geological Survey is one of those – it has no regulatory responsibilities. Indeed, USGS promotes its lack of regulatory authority as “proof” of its even-handedness. Instead, its mission is to “serve the nation by providing reliable scientific information.” There’s PCTC’s problem – we have proven beyond any reasonable doubt that the USGS has been spreading unreliable science – science that cannot be reproduced, models that are manipulated to give predetermined results, assessments that double-count data and stretch numerical guidance to give the appearance of excess risk, lab experiments that do not reflect what happens in the real environment. But the USGS refuses to admit that anything is wrong. They “defend” their science by pointing out that PCTC represents industry, and therefore can’t be right. Even though, through PCTC’s Freedom of Information Act request, an email turned up with one of the USGS scientists describing in her own words how the data were manipulated to make it appear that pavement sealants were the source of a possible problem. PCTC filed that FOIA request in 2011, seeking scientific data as well as communications about the data. Six years later, we still don’t have all the data the public is entitled to see and the USGS has only released something like 20% of the emails we believe should be made available not only to PCTC, but also to the general public.

The root of the problem faced by PCTC lies in the misbehavior of a US federal agency that is seeking to be relevant. But the roots are sprouting weeds in towns and villages and cities and counties around the country where local activists pressure local politicians to make policy based on the USGS say so. This has mostly happened in wealthy communities where activists long on fury but short on scientific evidence supporting their outrage vigorously seek to persuade elected officials that business people are okay with poisoning their kids and the environment. Those activists and elected officials also seem to believe that scientists who work for the government are somehow superior to (and certainly more “pure” than) scientists who are not government employees.

There has been much rhetoric by the incoming administration about reining in an out of control government. PCTC can only hope

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