Obscure Law a Powerful Weapon Against Environment

As originally published on the website of the Center for American Progress.

by Sidney Shapiro, March 23, 2005

If you've never heard of the Information Quality Act (IQA), you're not alone. When it cleared Congress in 2000, most senators and representatives didn't even know they were voting for it; the two-paragraph provision had been quietly attached only hours before to a massive appropriations bill. But vote for it they did, and it became law without benefit of congressional hearing or debate. Despite its brevity and furtive entrance onto the legislative stage, the act has come to be a powerful weapon in the Bush administration's attack on environmental, health, and safety protections.

The IQA directed the Office of Management and Budget (OMB) to promulgate "policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility and integrity of information . . . disseminated by Federal agencies." That's a simple enough charge. But the administration's application of the law has extended far beyond the text of the statute, inviting industry to challenge not just information disseminated by the government – such as pamphlets or web materials – but information used to support regulation. If industry had no other way to challenge regulatory decisions, that might be understandable. But that's not the case; industry has many ways, and uses them liberally. And now industry is using the IQA as a means to hector and delay regulators, throwing yet another roadblock in the path of sensible safeguards for the public.

In a new report, "Truth and Science Betrayed: The Case Against the Information Quality Act," my colleagues at the Center for Progressive Regulation and I describe in detail the ways industry has taken the administration up on its offer to clog the regulatory process with IQA challenges. Our researchers examined IQA petitions filed to date and found repeated attempts to:

• delay overdue regulatory actions that have already been subject to extensive public review and comment;
• withdraw unfavorable reports rather than simply correct incorrect information in the report;
• "correct" policy decisions on the part of agencies empowered to make such decisions;
• bypass existing statutory procedures for regulatory decision-making;
• prevent agency action in the face of incomplete, rather than poor quality, information;
• obtain underlying data without complying with established Freedom of Information Act request procedures; and
• sidestep the courts by attempting to discredit information that corporate defendants have either been unable to successfully exclude at trial, or information that they would prefer not to encounter in future litigation.

In short, industry is taking advantage of the administration's expansion of the IQA and turning it into a powerful weapon against environmental, health, and safety regulations.

Perhaps the most significant effect so far is that untold regulatory resources are being diverted from the task of protecting the public to responding to IQA petitions. Ironically but not surprisingly, OMB – usually fixated on cost-benefit analysis – has never analyzed the opportunity costs of this diversion.

Two recent IQA complaints illustrate how industry is using the IQA to reopen regulatory disputes that concluded with stronger health and safety standards. In June 2004, the Sherwin-Williams Company submitted an IQA petition demanding that EPA deny requests by states to regulate – as part of their Clean Air Act Implementation Plans – volatile organic compounds (VOCs) in paint. VOCs contribute to ground-level ozone, the pollutant behind the summertime "Code Red" air quality warnings that caution children and the elderly to stay inside. In its move to block regulation of VOCs, Sherwin-Williams sought to accomplish through a federal IQA challenge what it had been unable to achieve before the states. Its basis? Alleged flaws in a single spreadsheet among the volumes of supporting documentation submitted by the states. Nine months later, EPA denied the petition, but Sherwin-Williams was already off and running in litigation, having filed appeals, based on the IQA, to EPA's approval of New York and Pennsylvania's Implementation Plan revisions.

In a similar case, NPC Services, Inc., a consortium of petrochemical giants including Exxon and Dow, asked EPA in August 2004 to withdraw its proposal to add PCB-contaminated Devil's Swamp Lake to the Superfund cleanup list. Located north of Baton Rouge, Louisiana, the lake is one of the most dangerous hazardous waste sites in the country, as nearby poor communities continue to fish for food in its toxic soup. Like Sherwin-Williams, NPC sought to revisit and preempt a regulatory decision that it had already unsuccessfully fought through established processes. NPC argued that EPA's proposal of Devil's Swamp Lake to the Superfund list violated the IQA because EPA hadn't considered the most recent study on the lake. Mind you, the recent study reached the same conclusion as earlier studies: that PCBs in the lake pose unacceptable risks to human health. NPC had successfully stymied EPA's efforts to list the lake a decade earlier, so the IQA petition must be seen as just one more in a series of efforts to spare Devil's Swamp Lake polluters the burden of cleaning up their mess.

Such delaying tactics are increasingly commonplace, and will likely grow more so as industry perfects its use of the IQA to stymie regulatory action. Such misuse, made possible by the Bush administration's broad-reaching implementation, has transformed the act into an all-encompassing, deregulatory directive that threatens to disrupt longstanding and effective environmental, health and safety programs. Unless such abuses are checked, the IQA may well prove to be the most destructive half-page of law that most people don't know is on the books.

Professor Shapiro is a member of the board of directors of the Center for Progressive Regulation (CPR) and holds the University Distinguished Chair in Law at the Wake Forest University School of Law. He is a co-author of CPR's report, "Truth and Science Betrayed: The Case Against the Information Quality Act." Professor Shapiro also co-authored letters to EPA and OMB concerning the IQA petitions filed with EPA by Sherwin-Williams and NPC. The report and both letters are available on CPR's website: www.progressiveregulation.org.