Agency Use of Science in the Rulemaking Process: Proposals for Improving Transparency and Accountability

Susan Dudley
by Susan E. Dudley, Director
March 14, 2017

Prepared Statement of Susan E. Dudley, U.S. Senate Homeland Security and Governmental Affairs Subcommittee on Regulatory Affairs hearing on Agency Use of Science in the Rulemaking Process: Proposals for Improving Transparency and Accountability, March 9, 2017

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Thank you Chairman Lankford, Ranking Member Heitkamp, and Members of the Subcommittee for inviting me to share my thoughts as you consider improving the transparency and accountability of science in the rulemaking process. I am Director of the George Washington University Regulatory Studies Center, and Distinguished Professor of Practice in the Trachtenberg School of Public Policy and Public Administration.[1] From April 2007 to January 2009, I oversaw federal executive branch regulations as Administrator of the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB). I have studied regulations and their effects for more than three decades, from perspectives in government (as both a career civil servant and political appointee), the academy, and consulting.

1.         The Importance of Transparency and Accountability in Regulatory Science

Effective regulatory policy that focuses resources on addressing real threats to public health and the environment depends on reliable scientific information and transparent policy choices. Unfortunately, such regulations are often the subject of heated debate, involving accusations of “politicized science.”

Problems arise when political decision-makers attempt to distort what scientific studies conclude, but also when scientists and others attempt to exert influence on policy decisions by selectively presenting, or even distorting, scientific findings While there is extensive media coverage of the former, the examination of how science may be politicized inside federal regulatory decision-making processes has been largely limited to academia and the scientific community.

As the Subcommittee considers proposals for improving transparency and accountability in agencies’ use of science in the rulemaking process, it should recognize two types of politicized science that can infect policymaking within regulatory agencies. The first is when scientists, intentionally or unintentionally, insert, but do not disclose, their own policy preferences in the scientific advice they provide government decision-makers. Such “hidden policy judgments” lead to what has been called “advocacy science”[2] or “normative science.”[3] The second is when scientists and/or policymakers conflate scientific information and nonscientific judgments to make a policy choice, but then present that decision as being solely based on science.

It is this tendency to “camouflag[e] controversial policy decisions as science” that Wendy Wagner called a “science charade”[4] and it can be particularly pernicious. For instance, a 2009 Bipartisan Policy Center (BPC) 2009 report, Improving the Use of Science in Regulatory Policy, concluded that “a tendency to frame regulatory issues as debates solely about science, regardless of the actual subject in dispute, is at the root of the stalemate and acrimony all too present in the regulatory system today.”[5] Both of these problems, hidden policy judgments and the science charade, can be the result of officials falling prey to the “is-ought fallacy”: incorrectly mixing up positive information about what “is” with normative advice about what “ought to be.”

Institutional arrangements in the regulatory development process tend to aggravate both hidden policy judgments and science charades. They threaten the credibility of the scientific process and harm regulatory policy. Many of those involved in regulatory decisions have incentives to hide policy preferences, such as how to deal with the uncertainty in assessments of risk, and to dismiss and denigrate dissenting views. Key policy choices, disguised as science, too often rest with technical staff; meanwhile, policy makers charged with making hard policy decisions are able to avoid responsibility by claiming that their hands were tied by “the science.”

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[1] The George Washington University Regulatory Studies Center raises awareness of regulations’ effects with the goal of improving regulatory policy through research, education, and outreach. This statement reflects my views, and does not represent an official position of the GW Regulatory Studies Center or the George Washington University.  

[2] See, for example, Jason Scott Johnston, ed. Institutions and Incentives in Regulatory Science. Lexington Books (2012)

[3] Lackey, Robert T. “Normative Science.” Terra Magazine. Oregon State University. 2013;8(2).

[4] Wagner, Wendy E. The Science Charade in Toxic Risk Regulation. Columbia Law Review. 1995 Nov;95(7): 1614; 29.

[5] Bipartisan Policy Center. Improving the Use of Science in Regulatory Policy. Washington (DC): Bipartisan Policy Center; 2009;10. Available at: “BPC”