A Wolf in Sheep’s Clothing: Senator Rucker’s Anti-Science Bill

Veteran watchers of the West Virginia Legislature will have noticed the trend to hide controversial bills behind innocent titles. This is the case with SB 599 introduced by Senator Patricia Rucker from Jefferson County on February 26. The title of the bill is Sound Science in Regulations Act, but the bill would impose an anti-science regime that would hobble the regulatory ability of state administrative agencies.

As in other states and the federal government, the West Virginia public is protected more by the regulatory and enforcement activity of administrative agencies than by the legislature or executive. But regulated industries have a pure profit motive and regard regulations as burdens on their profits. It is no wonder these industries urge their favorite legislators to restrain administrative agencies.

That’s what SB 599 does. It applies when agencies seek to regulate “chemicals related to drinking water, water pollution control, hazardous substances or contaminated site remediation, air quality or solid or hazardous waste handling.” Shouldn’t all of us want these agencies to take a broad and inclusive view of which chemicals might hurt us, like PFAS in our drinking water?

Not so fast, says industry! In its sheep’s clothing SB 599 says only “the best available science” should be used in making these regulations. Sounds good, doesn’t it? But it goes on to create two absurdly high tests for what that science is, obviously seeking to limit what may be considered.

First, if a regulation relates to human health the “best available science” must indicate that exposure to the chemical above the level proposed is “causally linked to manifest bodily harm in humans.” This very important limitation is not defined, but science rarely concludes that exposure to a chemical “causes” human harm. Rather, it proves that the chemical and a human health condition are found together so often that the statistical connection is reliable.

For example, does smoking “cause” lung disease? Tobacco companies still deny this, but the two are found together so often that a reasonable person can rely on it. And so can regulatory agencies. But you can bet that if SB 599 becomes law it will provide industry with endless opportunity to undermine important regulatory efforts by dwelling on whether X causes Y.

Second, SB 599 requires that any new regulation be supported by studies that are published in “refereed journals” that don’t charge publication or submission fees to authors. This would exclude excellent publications like the Journal of the American Medical Association that do charge fees.

But worse, requiring publishing in these refereed journals exalts the exclusive use of a heavily academic way to determine reliability that often takes years to complete. Sometimes valuable and reliable scientific work doesn’t follow this route and shouldn’t be excluded from consideration because it doesn’t.

All this boils down to a contest between a small group of people who manufacture chemicals — and want to sell more of them — and the rest of the people in the state. In the large regulatory space before there is a “causal link to manifest bodily harm,” SB 599 tells the DEP that no limits can be put on the use of the chemical. Instead of requiring chemical manufacturers to prove that their chemicals are benign, Senator Rucker’s bill will require opponents to jump through hoops.

If you are not convinced that SB 599 is an industry bill, then consider this. A virtually identical bill was introduced recently in the Tennessee legislature backed by the U.S.Chamber of Commerce. In Tennessee it is generally understood that their bill is designed to limit regulatory agencies from adopting strict anti-PFAS regulations. These chemicals are not currently regulated at all in Tennessee. The bill was subsequently modified to remove the requirement of publication in refereed journals.

SB 599 has been assigned to the Government Organization Committee chaired by Senator Rucker. That Committee has fourteen members, four of whom (including Senator Rucker) are sponsors of the bill. A majority of the Committee is required to vote to send the bill to the full Senate for consideration. This seems relatively certain unless concerned citizens make their voices heard in opposition.

Science should work for all of us, not just the powerful industries who have allies in the Legislature.