Admit it. If they could, Trump and most Republicans would like to just get rid of OSHA, EPA the Consumer Product Safety Commission and any other agency — or law — that protects workers, consumers or the environment.
This is all part of Steve Bannon’s goal of “deconstructing the Administrative State” — making sure that corporate America’s quest for ever higher profits and control over our lives is not hindered by any of these damn government agencies that Congress created when the liberals ruled the earth.
But simply repealing the Occupational Safety and Health Act or the Clean Water Act probably wouldn’t play well even in Trump-America where people still like to come home alive at the end of the day and hate the idea of their kids drinking poisoned water.
So what to do, what to do?
How about just making sure the government can’t issue any new protections: the standards and regulations that put teeth into the laws?
The thriving New York Times has described two of their clever strategies that would do just that.
Get Rid of the Science: “Weaponized Transparency”
The Times reports that EPA Administrator Scott Pruitt is proposing to “no longer consider scientific research unless the underlying raw data can be made public for other scientists and industry groups to examine.” Pruitt is doing this in the name of “transparency.” After all, what could be wrong with only allowing science where the raw data is available for other scientists to critique?
Well, here’s the problem.
Opponents and supporters agree that the proposed new policy has its roots in the fossil fuel industry’s opposition to a groundbreaking 1993 Harvard University study that definitively linked polluted air to premature deaths. The “Six Cities” study, widely considered one of the most influential public health examinations ever conducted, tracked thousands of people for nearly two decades and ultimately formed the backbone of federal air pollution regulations.
The problem is that this study used the private medical and occupational histories of more than 22,000 individuals. And if this private data were made available for public review, EPA “would have to spend hundreds of millions of dollars, according to a federal estimate, to redact private information.”
The bottom line, critics say, is that if the E.P.A. is limited to considering only studies in which the data is publicly available, the agency will have a narrower and incomplete body of research to draw on when considering regulations.
It’s not like no one has ever looked at this data critically. It’s all peer reviewed by other specialists in the field.
It’s “weaponized transparency,” according to Former OSHA head Dr. David Michaels, currently a professor at George Washington University and author of Doubt Is Their Product: How Industry’s Assault on Science Threatens Your Health.
This is not just an academic debate. Not only would this policy chill scientific study and make it more difficult to protect workers and the environment, it would cost lives — thousands of lives:
Opponents of the proposed E.P.A. policy say the effort all comes back to the fossil fuel industry’s decades-long frustration over the Six Cities study and a related one sponsored by the American Cancer Society. Those studies, which have been independently evaluated and have had their findings confirmed, underpinned the first Clean Air Act regulations on fine particulate matter. Based on the research, the E.P.A. in 1997 estimated the rule would prevent 15,000 premature deaths annually and hundreds of thousands of cases of asthma and bronchitis.
So who’s behind this nefarious, and not so subtle plot? Who else but the Koch brothers, as well as Exxon Mobil, Peabody Energy and the American Chemistry Council.
Oh, and there’s also a bill in Congress that would mandate the same thing: The “Honest and Open New E.P.A. Science Treatment Act,” also known as the “Honest Act.”
Weaponizing the Judiciary
Just in case restricting the data that forms the basis of protective regulations doesn’t work, the Trump administration, Republicans in Congress and corporate American have another card up their sleeve: making sure the courts reject any regulations that manage to slip through.
One area that the Trump administration has seen great success has been in the selection and confirmation of conservative judges who have passed a critical “litmus test.” Usually, when we hear the words judicial “litmus test” it’s related to the debate over abortion.
But according to an article in this morning’s New York Times, the Trump administration is applying another litmus test: reining in what conservatives call “the administrative state” by limiting the discretion that agencies like OSHA or EPA have when they issue complex regulations.
What does that mean? When Congress passes a law like the Occupational Safety and Health Act, they give OSHA the authority to issue specific standards, and the law provides some guidance for the criteria the agency has to follow. For example, OSHA has to ensure that their standards are economically and technologically feasible. But Congress doesn’t have the time or expertise to issue the specific standards — like those to protect workers against silica exposure, trench collapses or falls. They leave that lengthy and complex work to the agency.
When the new standards are inevitably challenged in court by the affected industries, the business associations argue that the agency didn’t evaluate the science properly, or didn’t ensure feasibility in the affected industries. The judges, who like your local Congresspersons, are not experts in toxicology or risk assessment, have traditionally deferred to the agencies’ expertise: “You’ve got some science here; you’ve got some science there. Congress says that the agencies have the expertise, so we defer to their decision.”
But not for much longer, if Trump and corporate America have their way. He is appointing federal judges who are “devoted to a legal doctrine that challenges the broad power federal agencies have to interpret laws and enforce regulations.”
Are you scared? If not, you should be:
This approach has shaped what could be one of Mr. Trump’s most enduring legacies, with the potential to dramatically shrink the body of federal regulations and programs that touch almost every aspect of American life — like workplace safety, environmental protection and health care.
If it is successful, the Trump administration could come closer than any Republican White House has to achieving a goal conservatives have longed for since the New Deal: curtailing the reach of a federal government they say has grown far too large and invasive.
According to Senator Richard Blumenthal (D-CT), these ideas have been around for a long time, “but have never been weaponized in the way that Trump is doing now with his judicial nominees.”
This blog was originally published at Confined Space on March 28, 2018. Reprinted with permission.
About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).