by Reed Hopper, Principal Attorney, Pacific Legal Foundation
PLF is involved in a number of cases challenging far-reaching federal regulations that were based on faulty science or never underwent meaningful scientific peer review, like the decision of the EPA to regulate carbon dioxide (a compound essential to life) as a toxic substance. But peer review in a regulatory setting is not what you might think it is.
There is a fundamental difference between research science and regulatory science. This fact is evident in the peer review process. In the research setting, a peer reviewer is encouraged to take a hard look at the data underlying the study under review and will often seek to replicate the researcher’s experiments to confirm the researcher’s conclusions. In a regulatory setting, however, a peer reviewer is often neither allowed nor encouraged to take a hard look at the data and virtually never empirically confirms the validity of the researcher’s conclusions. This has nothing to do with the integrity or ability of the regulatory peer reviewer. It has everything to do with time and money. As a practical matter, peer review of the science supporting an administrative rule is limited to whether the researcher’s conclusions are consistent with his data. The data itself is rarely questioned.
The unhappy result of this approach is that regulatory peer review does not and often cannot reveal the researcher’s bias or error. But the peer review gives the researcher’s conclusions the appearance of legitimacy because, after all, the research was “peer reviewed” by independent experts. If the research is flawed, the peer review perpetuates a fraud or mistake and may even propel it to the level of undisputed scientific fact. In that case, we all lose.
Because the peer review process is often not rigorous enough to uncover bias or error, it undermines public confidence in regulatory decision making instead of building public trust. When we see expert agencies like the EPA issuing culture-changing rules to address perceived risks to the environment, we have to ask if the regulatory peer review process is giving us what we want. It certainly is not giving us what we need. Perhaps it’s time we consider something more. To ensure that onerous environmental regulations are necessary, efficient and productive is one reason why PLF is in the courts fighting for your rights.
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