From Flint to Yucca Mountain, politicized regulators are doing harm

By Jeff Terry | June 8, 2016

Americans were scandalized by revelations from Flint, Michigan, where citizens have dealt with unsafe, lead-tainted drinking water for two years. When the news broke—of the tainted water itself, the state agencies who initially dismissed the problem, and the bungled federal response—many asked, “How could this happen here?” The fact is, though, that what went wrong in Michigan has happened before and continues to happen in various parts of the United States: Regulators charged with protecting the public interest fail to do so, because they act based on political pressure—real or perceived—rather than science.

When this happens, two things can result. First, actual immediate harm can come to members of the public, as has occurred in Flint. Second, the public can lose trust in the ability of the regulator to perform its job. This loss of trust is dangerous in the long run, because it negatively affects the public’s ability to understand and correctly respond to risks. If we can’t reverse the trend toward political decision-making, and make sure regulators base decisions on clear scientific principles, we are all in trouble.

One recent example involves Yucca Mountain in Nevada, which the US Department of Energy identified as a top possible location for a nuclear waste repository in 1986. Sen. Harry Reid, the Nevada Democrat and former Senate majority leader, long opposed situating such a facility in his state. Reid has a demonstrated history of attempting to interfere with the Nuclear Regulatory Commission (NRC), which is charged with regulating the safety of the nuclear industry, and the Federal Energy Regulatory Commission, which oversees the electric grid. He worked very hard to get his former aide, Gregory Jaczko, appointed as the chairperson of the NRC. Jaczko was then “instrumental in slowing progress on a proposed nuclear waste dump at Yucca Mountain, about 100 miles from Las Vegas,” the New York Times reported

According to the NRC’s inspector general, in 2010 Jaczko ordered NRC staffers to stop work on a scientific evaluation of the Yucca mountain repository. He did this even though a majority of the NRC commissioners did not agree that the evidence suggested work should be stopped. His decision certainly appears to have been politically motivated. Shortly after Jaczko resigned as chairman, the Washington, DC Court of Appeals ordered the NRC to complete the evaluation. In late 2014, the NRC began releasing the final volumes of its report on the safety of the proposed facility, in which the science clearly indicates that Yucca Mountain could contain radioactive waste for at least one million years.

Politicians should be free, of course, to argue over the benefits of opening a permanent nuclear waste repository. The regulator, though, should have been above the political fray. The delay in opening a repository has two significant effects. First, some states have prohibitions on opening new nuclear reactors until a permanent waste solution exists, depriving society of a tool with the demonstrated ability to combat climate change by reducing carbon emissions. Second, the lack of a permanent repository prevents the final decommissioning of America’s many recently closed nuclear reactors. For example, decommissioning of the Zion Nuclear Power Plant in Illinois is progressing very well, with removal of all the site’s large components completed as of early 2016, and the process on track to be finished by 2020. Unfortunately, because there is no operating nuclear waste repository, the spent fuel will remain stored on site for the foreseeable future, preventing the location from being returned to productive use. If regulators do not stop ignoring the science, the same scenario is likely to play out in California, Florida, Wisconsin, and Vermont as reactors in those states are decommissioned.

Citizens suffer. There is plenty of blame to go around in the Flint drinking water fiasco, which should serve as a case study of how not to make technical decisions. The United States Environmental Protection Agency (EPA), in particular, made decisions that were questionable at best and appear to have been guided by politics rather than science. After Dr. Mona Hanna-Attisha identified elevated lead levels in the blood of children drinking the city’s water, the question turned to what could be done. One possibility that EPA officials discussed was using money already set aside in the Drinking Water State Revolving Fund (DWSRF), a program specifically intended to provide financial assistance to help achieve safe drinking water goals. Program funds could have been used to add home filtration systems to remove lead. EPA correspondence about the possibility, though, indicated concern over Flint’s financial status. Debbie Baltazar in the Chicago office of the EPA wrote to colleagues in September 2015:

Here is information regarding use of DWSRF set-asides. We’ve included information on Flint’s financial practices as we think Susan [Hedman, the EPA’s regional administrator] needs to be aware. Perhaps she already knows all this, but I’m not so sure Flint is the community we want to go out on a limb for. At least without a better understanding of where all that money went.

Offering this kind of assistance to Flint many not send a good message to all the cities that properly manage their water and sewer fees.

The author of this memo may have had future budgetary concerns in mind, but fundamentally, she was introducing political calculations into a decision over a technical fix to the problem of lead in the water.

Another EPA official, a regulations manager in the Chicago office named Miguel Del Toral, recognized that politics was less important than protecting the public. His response to the email quoted above should have carried the day:

There is nothing that can be done in the immediate future with respect to treatment that can prevent more children from being further damaged. Someone needs to require that the residents of Flint be provided with water filters until they can fix the treatment. 

Not only did Del Toral’s advice go unheeded, but those close to the situation say he received significant retaliation in response to his warnings.

In Flint, it was within the EPA’s purview to discuss whether the city needed a public filter system, multiple private filters, or a different water provider. Any evidence that the city had mismanaged resources could have been turned over to the legal system. But the regulator should not have delayed a solution while people were being exposed to lead because of concern over what “message” a rescue would send. When a regulator gets wind that the public is at risk, it should verify the facts and immediately act to fix the problem. The true victims of this decision-making are the roughly 9,000 children under six years of age who the state of Michigan is now recommending be treated as having been exposed to lead.

Plenty to grouse about. Unfortunately, Flint doesn’t seem to be the only recent incident of non-science-based EPA decision-making. On April 29, the agency posted an 86-page report concluding that glyphosate, an herbicide, is not likely to be carcinogenic. The 13 scientists who signed the report found no link between the herbicide and a number of cancers. Three days later the EPA took the report down, saying it had been published inadvertently and wasn’t final. What happened? It’s not clear yet, and members of Congress sent letters to the EPA asking for an explanation. But it certainly looks as though the EPA may have succumbed to the pressure of political controversy. Glyphosate is a target of activists opposed to genetically modified organisms, because it is used to eradicate weeds from crops engineered to resist it.

The Bureau of Land Management, meanwhile, appears to have done the EPA one worse: Instead of pulling a study, it didn’t properly conduct one in the first place. In late May, a federal appeals court ruled that when the Bureau approved an Oregon wind power project five years earlier, it “did not adequately address impacts to the greater sage grouse” as it was required to do under the National Environmental Policy Act. It turns out that the Bureau did not actually study the proposed site to determine whether the bird species was using it as a winter habitat, instead making assumptions based on studies of nearby sites. Why would the Bureau not do its environmental due diligence? The most likely explanation is that it thought it would be politically expedient to simply go ahead and approve the wind project.

A better way. Incidents like these reduce the public’s trust in government agencies and show a clear danger in allowing politics to trump science. Geoffrey Hunt and Michael Mehta studied the effects of misguided regulation with regard to nanotechnology and found that the resultant lack of trust in the regulator can change how the public understands the actual risks of a situation. This can result in difficulty in both communicating and implementing solutions to problems. 

To maintain—or regain—public trust in our regulators, they must not behave like political entities, and the science they conduct must be beyond reproach.In democratic systems, the heads of government agencies usually have to be appointed and confirmed by political bodies. The nature of this process means that politically active people tend to self-select to lead these agencies. So what can be done to minimize the potential for regulators to become overly politicized?

In the United States, the American Bar Association has found a way to limit the power of politics to influence appointments. It has a standing committee that rates potential candidates for federal judgeships. The press and ultimately the voters can use these rankings to judge the politicians who choose to place unqualified people in these important positions. The National Academies of Sciences, Engineering, and Medicine –and their equivalents in other countries—could do something similar in their respective fields. For example, they could set up standing committees to rank potential leaders of government agencies charged with protecting the public. Any politician trying to push through an unqualified nominee could be quickly called out and subjected to the rebuke of the voting public.

Once selected by politicians, agency leaders should be free to act upon the best scientific knowledge available. A non-political organization like the National Academies should be placed between those tasked with protecting the public and the appointing political bodies. If a member of the public, agency bureaucrat, or politician wanted to remove someone from a regulatory position, he or she would have to convince the non-political organization that the regulatory official acted in a manner contrary to the best available scientific practices. A system with science-based checks and balances would protect those tasked with protecting the public from politically based retribution.

Changes like these would go a long way towards restoring confidence in regulators. This would help arrest the slide in the public’s confidence in science, technology, and medicine. We all benefit from public trust in the technologists who are working to tackle major challenges in energy, climate, and health. Humanity faces problems that include energy poverty, nutritional deficiencies, disease, exposure to toxic chemicals, and climate change. Without public trust in the system, it will be difficult to implement the procedures and regulations needed to solve them. Ultimately, the science doesn’t care about politics, so we had better be prepared to develop political solutions that incorporate rather than ignore the science. 

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