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Energy and Environment Monitor

Challenges continue to Trump directive prohibiting EPA grant recipients from participation in EPA advisory committees

August 7, 2019

By: Robert G. McLusky

In October 2017, the Trump EPA issued a Directive prohibiting anyone who receives EPA grants from sitting on an EPA Science Advisory Board (“SAB”) or similar science advisory committees formed under the Federal Advisory Committee Act. The Directive was immediately challenged by advocacy groups which had long succeeded in placing sympathizers, many from academic communities and non-profits that receive EPA funding, on the SAB committees. We wrote about this last on March 26, 2019, providing some detail on the Directive and the Advisory Committee process. There, we noted that two early challenges had been rebuffed by federal district courts in New York and the District of Columbia. 

A day later, on March 27, a federal court in Massachusetts also turned back a challenge to the Directive. See Union of Concerned Scientists v. Wheeler.  In the Massachusetts case, the Court noted that the dispute had little to do with whether the Trump administration policies were the best way to implement national environmental policies. Instead, the case presented the “narrow issues” of whether “a specific EPA conflict-of-interest directive violates federal law, and whether plaintiffs are proper parties to assert such claims.” 


The Court initially found that one of the plaintiffs, a professor at University of Washington and a member of EPA’s Clean Air Science Advisory Committee, had abandoned her role in EPA-funded research as a result of the Directive. This, the Court found, was a sufficient injury to give her standing to challenge the Directive. The Court also found that the Directive was final agency action and the dispute was ripe for resolution. Nonetheless, the Court rejected four separate challenges to the Directive.


First, the Court rejected a challenge that the Directive was an inadequately explained departure from prior agency policy and either in conflict with or an unnecessary departure from existing conflict of interest provisions set forth in federal law. Following the earlier ruling of the D.C. District Court on which we previously reported, the Court ruled that EPA had adequately explained its exercise of discretion and that the Office of Government Ethics rules cited by plaintiffs precluded judicial review. 


Second, the Court found that claims the Directive violated federal conflict of interest laws and rules were unavailing because those provisions created only a floor, and not a ceiling, on EPA’s ability to define and police conflicts of interest.


Third, the Court determined that plaintiffs could not pursue a claim that the Directive violated federal statutory requirements that SAB Committee membership be “fairly balanced in terms of the points of view represented and the functions to be performed.” Plaintiffs argued that the Directive created unbalanced committees because it disproportionately excluded scientists from academic and non-profit organizations. The Court ruled that the statute provided no meaningful standard to apply to the inquiry and, therefore, the dispute was not “justiciable.” 


And, finally, for the same reasons, the Court ruled as non-justiciable claims that the Directive violated other statutory provisions of the Committee appointment process that requires committees to be free from “inappropriate influence by the appointing authority or by any special interest.”


The Union of Concerned Scientists has appealed the March 27 ruling to the First Circuit. There, several former EPA and other federal employees have filed an amicus brief in support of the Union. Among their argument is that existing rules of the Office of Government Ethics “do not treat grant funding as a disqualifying interest” and that “EPA science advisory committees have always welcomed scientists who received grant funding from either the agency or from regulated industries.” Thus, they claim, EPA is trying to “solve a problem that does not exist.” Worse, they say, being in receipt of EPA grant funding actually creates expertise and prohibiting funding recipients from participation in the SAB committees will diminish the expertise of the committees and thereby result in violations of statutory directives under environmental statutes such as the Clean Air Act that EPA uses the best available science to devise ambient air quality standards.

 

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