Accounting for Science: The Independence of Public Research in the New, Subterranean Administrative Law

Abstract:     
The search for "good science" has recently developed a particular structure in administrative law through two relatively little-known statutes, the Data Access Amendment and the Data Quality Amendment. The value of these statutory developments to both scientific accuracy and the scientific process is questionable or, at least, has been questioned by scientific institutions such as the American Association for the Advancement of Science, the National Academies of Sciences, and the National Science Foundation. On the other hand, the new statutes have been repeatedly supported by individuals and organizations with antiregulatory or deregulatory agendas. Although it is still too early to determine how implementation of these statutory programs will be supervised by the Office of Management and Budget, there are signs that the statutes could be used strategically, by some of their most ardent proponents, to hamstring agency rulemaking and otherwise hold scientific research up to unusually adversarial scrutiny. This Article expresses concern that "good science" will thus be used as a club by those who disagree with the results of scientific research, and illustrates the possibilities with examples from corporate attempts to influence university-based medical research. The Article suggests that the Data Amendments represent a type of new, subterranean administrative law that may trump, in practical operation, the classic model of congressional delegation to expert administrative agencies for specific policymaking and implementation. Indeed, the Article uses the Supreme Court's recent American Trucking litigation as a case in point in which the Court's holding, supporting just such a delegation, has in fact been trumped as a practical matter, as to the specific ozone and particulate air-quality standards at issue in the case, by the new, subterranean administrative law aimed at hyper-analysis of the science underlying these standards.

Number of Pages in PDF File: 34

Keywords: administrative law, good science, data quality, data access, public research, deregulation, conflicts of interest

Accepted Paper Series