Beyond Regulations - How Chevron will Impact Agency Science
The recent Supreme Court ruling on the Chevron deference will impact Federal Agencies such as the Environmental Protection Agency (EPA) long into the future. While the initial focus of this ruling has been on regulations, there are potential implications for science, which informs those regulations and scientific integrity in general.
Changes to how an agency can use scientific information
For example, EPA’s mission of protecting human health and the environment relies on science to answer key questions and address uncertainties. Information gained from scientific research is then analyzed and used to inform policy decisions that best protect human health and the environment. While Congress, through the appropriations process, directs what science EPA conducts, the impact of the Chevron decision could likely impact how EPA uses that information.
As we saw with the failed attempt of the Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information rulemaking (referred to as Science Transparency Rule), thanks to the Chevron decision, there could be renewed efforts to limit the type of science regulators would consider. The Science Transparency Rule focused on dose-response data, and its availability, identified as pivotal science that would form the basis for regulatory standards and cost analyses. This rule could have impacted the use of key public health studies where certain data may not always be available for reanalysis. As a result, in excluding these types of studies, EPA decision-makers would not be using the best available scientific information as required by several environmental statutes. Further, this rule called into question long-standing scientific practices such as peer review by requiring additional “independent” peer review of journal articles that have already gone through peer review.
Changes to agency scientific integrity policy and practice
Sound Scientific Integrity (SI) Policies prevent suppression of scientific information and manipulation of peer review practices. Federal Agencies like EPA have SI Policies designed to ensure a separation of science, including science policies, from regulatory policies that include economic, political, and other societal factors. The SI policy promotes transparency in what science is used in decision-making, ensuring that all data, analyses, and interpretations are available to decision-makers. The SI policy also protects the rights of scientists to publish and communicate their work and from intimidation or coercion by managers and agency leadership seeking to alter science or scientific assessments. Implementing SI policies is critical to establishing public trust.
As a result of the Chevron decision, agency leadership could be emboldened to ignore SI policies. For example, groups have already created a roadmap to undo scientific integrity policies, including the potential to bring suit against an EPA union that included scientific integrity provisions in their most recent bargaining agreement. Since Congress hasn’t passed scientific integrity legislation, do courts take this as a signal that agencies cannot implement SI policies? Chevron makes these kinds of legal decisions as clear as mud. If scientific integrity policies were undone then agencies science-based decision-making processes could potentially become less transparent, exclude important information that doesn’t support a desired policy outcome, open the door for political influence of scientific findings, bias peer review, and restrict publication of scientific research.
Changes to federal scientists’ morale
Federal Agencies are already challenged with operating during uncertain times this election year. The Chevron decision now adds to that uncertainty for the scientific workforce. The unique motivator for federal scientists is public service and their work’s impact on improving environmental quality and the quality of life for the public. If science is diminished, unduly influenced, or overturned by a non-expert judge, as the Chevron decision seems to allow, scientists may question the value of public service as a career. Imagine putting in all the time in school and training to become a scientific expert, then putting in the time to get hired by a federal agency to do public service work that you care about, to putting in years of scientific work on a regulation to protect public health - all for it to be flushed down the toilet because a judge, who doesn’t have scientific expertise, disagreed with your work. This would be degrading. Why do all this hard work if it can be undone with the pound of a gavel?
Changes to the federal scientific workforce
Given the above impacts, this ruling could have unintended consequences for future hiring and retention of the federal scientific workforce. The Chevron decision has harmed the unique motivator for federal scientists - to utilize their scientific expertise to serve the public. If they cannot achieve this in their roles, will they stay at federal agencies? We suppose time will tell.
If current scientists are driven to retirement or take buyouts, this could be disastrous for agencies' scientific capacity. This is not only because agencies would suffer a brain drain but because the current majority of agency staff are more senior - a dirge of scientific staff could result in a lack of mentorship for incoming junior expertise.
If you are a younger scientist considering working for a federal agency, especially in light of the Chevron decision, that work may not seem all that appealing. At a time when we need a new generation of federal scientists to tackle new and pressing issues, like artificial intelligence, the Supreme Court has made this feat all the more difficult to achieve. Given that federal scientists impact government decisions that affect your health and safety - well, maybe not as much anymore - having federal agencies appropriately staffed with the scientific expertise needed to fulfill their missions is important.
Where do we go from here?
The road ahead to undo this mess is not fully clear. Congress could clarify that they will defer to agency interpretation of ambiguous statutes. However, statements from some justices on the Chevron decision suggest this wouldn’t be legally permissible. Given that the legislative body has become extremely polarized, Congress is unlikely to pass such a clarification anyway.
We may need to start considering building scientific infrastructure outside federal agencies - in courts and states. The American Association for the Advancement of Science (AAAS) released a statement after the Chevron decision, saying there was an urgent need to scale scientific expertise in the courts.
The Chevron decision is hugely impactful and will require the scientific community to rethink how scientific information informs policy. On the science policy side, we’re talking about major changes, such as a major shift in scientific infrastructure.
We’ve got a lot of thinking and work to do. So, who is putting together the first workshop?
About the author
Dr. Jennifer Orme-Zavaleta served at EPA from 1981-2021. From 2017-2021, she served as the Principal Deputy Assistant Administrator in the Office of Research and Development and EPA’s Science Advisor. She began with EPA as a student intern conducting research on the potential health effects of drinking water contaminants. Over the course of her career, Jennifer worked in the Office of Toxic Substances and Office of Water in the areas of human health and ecological research, risk assessment, policy and regulation development, strategic planning, and program
implementation. As EPA’s Science Advisor, Jennifer Chaired the Agency’s Science and Technology Policy Council and worked to refocus the Risk Assessment Forum. In 2008, she served as the President of the Society of Toxicology’s Risk Assessment Specialty Section. In 2021, Jennifer received EPA’s Distinguished Career Service Award as well as a Distinguished Executive Presidential Rank Award.
Dr. Orme-Zavaleta received her B.A. in Zoology from Ohio Wesleyan University, an M.S. in Zoology and Toxicology from Miami University, and a Ph.D. in Wildlife Science with a minor in Public Health from Oregon State University.
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