Academic journal article Environmental Law

OMB and the Politicization of Risk Assessment

Academic journal article Environmental Law

OMB and the Politicization of Risk Assessment

Article excerpt

  I. INTRODUCTION
 II. THE EXPLOITATION OF SCIENTIFIC UNCERTAINTY
     A. The Interaction of Law, Science, and Policy
     B. Uncertainty and Politization
        1. Scientifically Inappropriate Default Rules
        2. Ossification
III. OMB'S RISK ASSESSMENT BULLETIN
 IV. OMB's LACK OF SCIENTIFIC EXPERTISE
  V. OMB's POLITICAL MOTIVES
     A. Ossification
        1. No Assessment of Potential Problems
        2. Industry-Generated Risk Assessments
     B. The Bending of Risk Assessment
        1. Anomalous Definition of Adverse Effects
        2. Central Estimate
        3. Inappropriate Risk Communication
     C. Consulting the NRC
 VI. OMB's APPROPRIATE ROLE
VII. CONCLUSION

I. INTRODUCTION

In 2004, sixty of the nation's most eminent scientists signed a declaration objecting to the politicization of science in the Bush Administration. (1) The administration's efforts to politicize science are documented in recent books and reports. (2) According to one author, "[t]he degree of lying, deception, and manipulation of information reported across so many federal agencies would seem to have required in the administration of George W. Bush a combination of callousness, mendacity, and hubris that is rare even in the messy history of American politics." (3)

In January 2006, the Office of Management and Budget (OMB) proposed a draft Risk Assessment Bulletin (Bulletin) containing guidelines for the conduct of all risk assessments by government agencies. (4) The Bulletin covered any scientific or technical document that assessed possible risks to human health, safety, or the environment. (5) OMB sought comments on the proposed Bulletin from the public and from regulatory agencies, (6) and it asked the National Research Council (NRC) of the National Academy of Sciences (NAS) to conduct an independent "scientific and technical review of the proposed [B]ulletin." (7) The NRC empanelled a committee of experts on risk assessment to undertake the review, (8) and the committee sought review of its draft report from additional experts. (9)

The committee began its work anticipating that "its role would be to recommend modifications [to the Bulletin], if necessary. [However,] [a]fter digging deeply into the bulletin and after extensive discussion, the committee reluctantly came to its conclusion that the bulletin could not be rescued." (10) The report indicates the scope of the problems found by the committee. (11) The appendix lists each OMB requirement in the proposed Bulletin line by line. (12) The committee has an objection or problem with nearly every line. (13) In January 2007, the NRC panel advised OMB that it should withdraw the proposed Bulletin, (14) which OMB did. (15) In September 2007, OMB issued a memorandum on "Updated Principles for Risk Analysis," which restates and updates an earlier OMB memorandum on risk assessment. (16) The memorandum, however, leaves open the issue for the next administration of what role OMB should play regarding agency risk assessment. (17)

OMB's lack of scientific expertise played a role in the failure of the Bulletin, but there is also abundant evidence that OMB saw the Bulletin as an opportunity to politicize risk assessment. It is therefore worthwhile to analyze OMB's initial effort and to consider what role OMB should play in superintending the risk assessment process in the federal government. This Article proposes that OMB should restrict its role to performing an agenda-setting and coordination role.

The argument for this conclusion proceeds in five steps. Section II explains how the relationship of science, law, and policy in regulation opens the door for politicization of science. Section III offers a description of OMB's draft Risk Assessment Bulletin. Section IV considers whether the many problems with the Bulletin identified by the NRC committee can be explained by OMB's lack of scientific expertise. This Section argues that OMB's lack of expertise is a reason for the failure of the draft Bulletin, but OMB also saw the Guidelines as an opportunity to politicize the risk assessment process in the government. …

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