The Environmental Protection Agency (EPA) has announced it is taking another small step increasing transparency by providing free access to a key database that lists every chemical in commerce. Well…almost every chemical. Of the more than 84,000 chemicals on the Toxic Substances Control Act (TSCA) Chemical Substance Inventory, the identities of almost 17,000 are kept secret because the manufacturers allege the information is confidential business information (CBI). Such CBI claims are widely abused by manufacturers, and with the EPA's acquiescence, large amounts of information are inappropriately withheld from the public. 

The EPA has acknowledged that CBI claims under TSCA are a problem and has taken additional steps to curtail the abuse. In January the agency announced it would reject a manufacturer's claim that the chemical identity is secret if the chemical identity already appears publicly in the inventory. This was a sensible move, and it shows that there likely are many other common sense actions the agency can take to improve the public's access to crucial information that should not be kept secret.

Comprehensive TSCA reform legislation is expected to be introduced in Congress any week now (it's been expected any week now for the last several months) and that might help the problem even more. However, EPA's toxics program is not the only program that sees abuses of CBI claims. For example, pesticides are regulated under a different law and illegitimate CBI claims infect that program too, impeding the public from learning what poisons are being applied near them or near sensitive ecosystems (like your drinking water source). EPA gathers information from businesses under a variety of regulations, and the public's right to know about a range of potential harms is impaired by illegitimate and exploitative trade secrets claims.

Before today's action, the list of chemicals was only available for a fee from the Commerce Department. Now the data are available for free in multiple formats from www.data.gov or from the EPA website.

EPA also announced it is planning additional steps to open up the chemical regulatory process. The agency will add TSCA facility information and the list of chemicals manufactured at the facility to the Facility Registry System (FRS). FRS is a database of the thousands of facilities covered by numerous EPA regulations. According to EPA, "The addition of TSCA facility and chemical databases to FRS will provide the public with information on the facilities in their communities using industrial chemicals." No time frame was provided for this action.

Today, the DC Circuit court reissued an opinion in Public Citizen v. OMB that rejected the agency’s use of exemptions 2 and 5 of the Freedom of Information Act (FOIA).  OMB had attempted to withhold information from Public Citizen that detailed which agencies submit materials to Congress without clearance by OMB.  This court case adds an important legal support to the FOIA practice of discretionary disclosure.

Exemption 2 of the FOIA allows agencies to withhold information concerning internal personnel rules and practices while exemption 5 applies to inter- and intra-agency materials that are pre-decisional and deliberative.  However, the DC Circuit found that the records have nothing to do with OMB’s internal practices.  Further, for exemption 5 to apply the records must be both pre-decisional and deliberative which do not apply in this instance.  Therefore, neither exemption can apply to these records in full.

This case is an important one in that it limits the way these specific FOIA exemptions can be used by agencies to withhold information from the public.  Government openness advocates have long argued that these exemptions are applied too broadly by agencies. 

Although the Obama administration has attempted to better define the applicable uses of these exemptions, advocates have not seen a decline in their actual assertions.  The Office of Information Policy at the Justice Department released a memorandum last May that instructed agencies to exercise greater discretion to release information under both of these exemptions if there would be no reasonably foreseeable harm from release.  Far too often, agencies will use exemption 5 to withhold records in their entirety when only part of the information in an entire document might actually fall under that exemption.  Further, agencies usually take vast liberties to apply exemption 2 broadly and withhold information that could inform the public in regard to activities of the government.  Hopefully this case will help push agencies to better comply with executive branch FOIA policy.

The Obama administration is nearing completion of a major federal regulation of greenhouse gas emissions for the first time in U.S. history. The Environmental Protection Agency and Department of Transportation will jointly issue a rule regulating vehicle emissions by mandating increases in fuel efficiency over the coming years.

Tuesday, EPA and DOT’s National Highway Traffic Safety Administration submitted a draft final rule for review by the White House Office of Information and Regulatory Affairs (OIRA), the last step in the rulemaking process before publication. The rule must be published by April 1 in order to give automakers enough time to comply with the rule’s requirements for model year 2012 vehicles.

In the proposed rule, EPA estimated the standards would reduce climate changing greenhouse gas emissions by 950 million metric tons and 1.8 billion barrels of oil for cars sold in the model years covered (2012-2016).

The environmental gains aren’t the only benefits worth noting; drivers’ budgets will benefit too. Under the proposed rule, DOT estimated fuel cost savings of more than $150 billion.

The joint rules have the support of both environmentalists and the auto industry who came to an agreement in May 2009. Environmentalists persuaded the administration to use California’s vehicle emissions program, which had never been implemented, as a model for the federal regulations. Even though automakers had objected to the California plan, they signed on because they wanted one standard applied to all 50 states.

You can always tell when the appropriations season is approaching because, somehow, earmarks, the shadowiest part of the appropriations process, always find a way of sneaking back into the political discourse. True to form, as we wait for Congress' budget resolution, today saw both the Democrats and Republicans announcing their own earmark reform plans. The House Democrats, through Congressman David Obey, chairman of the Appropriations Committee, announced that they would be forbidding earmarks to for-profit organizations. At the same time, House Republican Leader John Boehner announced that his caucus was considering an outright ban on earmarks from House Republicans.

Both actions seem like an overreaction. While there was indeed earmark abuse, all for-profit entities were not abusing them, and the House Democrats' actions seem to be punishing those who were following the rules. Also, as a recent New York Times article on the Congressional Black Caucus Foundations suggested, not all non-profits are perfect angels. And banning all earmarks completely won't get rid of corruption or influence-peddling; the most famous recent such scandal, involving Jack Abramoff, wasn't about earmarks.

We at OMB Watch don't take a strong stance either way on earmarks, so we're not going to endorse either party's proposal. What we care about is transparency. As long as everything is transparent and above-board, we're okay with it. But right now, the earmark process could be a lot more transparent.

The problem is that it can be difficult to tell who requests which earmark. In 2009, Congress mandated that Members disclose their earmark requests online. This should have solved the transparency problem, but instead of providing the data in one place, the new rule left it up to each Member to post their earmarks on their individual websites. This meant that there were now 535 different websites listing earmark requests.

To help fix this new problem, Obey's announcement banning earmarks for for-profits also included a promise to provide a "one-stop" link to all Members' earmark requests. While it's not clear what how this promise will be executed (one page with every Member's earmark requests, or one page with links to each Member's website which lists their requests?), we're hopeful it's similar to the principal behind a petition OMB Watch just signed onto. The petition calls on Congress and the Obama administration to make public all earmark information, in one place, in a data-readable format. This information, the "who, what, when, where" of every earmark, could be used by everyone from journalists to advocates to ordinary citizens to actually make the earmark process transparent. It's a great idea, and getting support for the petition is important. Even if Obey releases all earmark information in one place, we still need the Senate data, since Obay's power is only over the House appropriations bills. So go sign the petition, and help bring transparency to the earmark process.

Image by Flickr user johnmuk used under a Creative Commons license.