On February 25, 2020, EPA Administrator Wheeler signed a memo changing how EPA engages with the Science Advisory Board (SAB) to decide which of EPA’s proposed regulatory actions the SAB should review. The memo decreases the transparency of the SAB review process, will likely limit the SAB’s effectiveness, and may be unlawful.
Going forward, EPA will privately meet with the SAB Chair and a limited number of SAB members to determine which agency proposals merit technical and scientific review by the SAB. Previously, these decisions were made collaboratively with input from the full Board. The memo also indicates that EPA will only engage with the SAB Chair on a proposed rule that has been released publicly, rather than during the development stage.
The SAB’s Mandate
The SAB is an independent board of nearly 50 experts charged with providing scientific and technical advice to EPA. Congress intended the SAB to advise the agency during the internal development of regulations. The SAB’s authorizing statute, 42 USC §4365, instructs the Administrator to provide the SAB with a proposed regulation, criteria document, limitation, or standard “at the time [it]…is provided to any other Federal agency for formal review and comment.” The SAB does not conduct a formal review of every EPA action. EPA or Congress can request SAB review, or the SAB can seek to advise EPA on projects.
The Board’s independence and public accountability are key to its success and to ensuring EPA uses accurate and high-quality science to inform its regulatory actions. The SAB’s independence from the agency helps to isolate it from political pressure. Pursuant to the SAB’s founding statute, the SAB must “make every effort…to maximize public participation and transparency,” including making its meetings and reports public. This holds the SAB accountable and allows it to receive valuable input from a diverse range of experts and scientific organizations.
Private Meetings with SAB Chair
Administrator Wheeler has ended the collaborative process for selecting SAB projects by establishing private meetings with a limited number of SAB members. The memo states that EPA will meet with only the Board chair and up to eight additional Board members to determine whether regulatory actions merit Board review. This change narrows the range of advice that EPA and the chair will consider and limits the role of Board members in the decisionmaking process. The current SAB Chair opposed individual meetings between the Chair and EPA described in a draft version of this memo. Allowing the chair to choose eight additional members to attend the meetings appears to be a compromise made in the final memo.
In the past, the SAB, offices within EPA, and other advisory councils undertook a collaborative process to select actions for SAB review. Whether the SAB should review the underlying science in a rulemaking depends on a variety of factors, including the importance of the science to the Agency’s mission, the novelty of the scientific method, and the environmental stakes. The SAB could better allocate its time and expertise through a discussion with the full Board when deciding which reviews to undertake.
In a letter to Administrator Wheeler regarding the draft guidance memo, Congresswoman Eddie Bernice Johnson, the Chairwoman of the House Committee on Science, Space, and Technology, noted that communicating only with the Chair and not the full Board may be counter to the SAB’s authorizing statute. As quoted above, the statute requires the Administrator to provide the Board with a proposed regulation at the time it provides the regulation to another agency. Consulting only the Chair and select members appears to contravene the clear statutory language.
Timing and Scope of Meetings
Administrator Wheeler also calls for these meetings to be held monthly and for the discussion to be about proposals that are already public. The memo’s language seems to indicate that, even if EPA provides information to another agency before releasing anything publicly, EPA will not engage with the SAB until a proposal is public.[1] If this is an accurate reading, it is later than the SAB’s authorizing statute requires. As Congresswoman Johnson emphasizes, 42 USC §4365 “requires that EPA provide the SAB with all proposed criteria documents, standards, limitations, and regulations at the time they are provided to another Federal agency for formal review and comment.” The process outlined in the memo is contrary to Congressional intent for the SAB to play an advisory role more similar to other agencies than to public commenters.
The memo itself states that “For advice from the SAB…to be truly impactful, the EPA should engage with the SAB early in the process (e.g. through reviews of methods and models that the agency believes will later be influential)…” Yet the parameters in the memo do not reflect this insight. EPA is setting itself up to miss many important opportunities for expert input in crafting its proposals by engaging with the SAB only after a proposal is public. Given the time it takes for a thorough scientific review, EPA could find itself delaying a final regulatory action while it waits for the SAB’s review or finalizing an action without receiving thorough scientific advice from the SAB.
Conclusion
By limiting the role of technical review, these changes could result in regulations that lack a sound scientific foundation, raising questions about the adequacy of the environmental protection they provide and putting them at risk of being invalidated by a court.
For more information, please see our other Mission Tracker posts, including:
- Science Advisory Board Draft Reports Reviewing Four Major Proposed Rules
- GAO Report on EPA’s Science Advisory Panels
- Appointing a Climate Change Skeptic to EPA’s Advisory Committee
[1] The memo states, “The SAB Office will host a standing monthly, non-public administrative meeting with the chair of the SAB. […] If no applicable regulatory actions have been signed or published, the meeting can be cancelled.”