05/07/2020 - EPA Mission Tracker

DC Circuit Weighs in on EPA’s Science Mandates

by Joe Goffman, Laura Bloomer

At EPA, sound science is inextricably linked to how the agency fulfils its statutory mandates. Willfully failing to get the science right means failing to adequately carry out its legal obligations. Rather than accepting this connection, the Trump EPA has tried to weaken it. In a recent decision on the EPA’s 2017 directive on membership qualifications for the agency’s science advisory committees, the D.C. Circuit made clear that EPA’s anti-science actions had legal ramifications. The court made explicit the link between a central component of EPA’s science capacity – access to independent scientific expertise –  and the agency’s “statutory scientific mandates”.

2017 Directive Barring Grant Recipients from Serving on Advisory Committees

In 2017, EPA issued a directive that disqualified EPA grant recipients from serving on the agency’s scientific advisory committees – expert, independent panels that Congress created to advise EPA on the science underpinning agency actions and statutory implementation. The administration issued the directive without providing an explanation for how it would improve EPA’s scientific expertise, meet the statutory charges for advisory committees, or advance EPA’s mission. The agency also didn’t acknowledge or justify its departure from federal guidance and agency practice that allow grant recipients to serve on committees.

Following the directive’s issuance, EPA essentially asked affected advisory committee members to choose between serving on their respective committees or continuing their EPA-funded research. As a result, the number of academic experts serving on advisory committees dropped dramatically. This change is significant because the committees’ scientific reviews and advice ensure environmental programs and pollution standards reflect the highest quality science, as required by law. By effectively shrinking the field of independent experts, many of whom were leaders in their fields, qualified to serve on science advisory committees EPA curtailed its capacity to carry out its obligations

Three Suits Filed Challenging the Directive

 Advocates field three separate lawsuits challenging the directive in federal district courts for the District of Columbia (D.D.C.), [1] the District of Massachusetts (D. Mass.),[2] and the Southern District of New York (S.D.N.Y.).[3] The petitioners raise different arguments in the lawsuits, but they generally all argue that the directive is unlawful and that EPA did not follow the required procedures for changing agency policy.

In February 2020, S.D.N.Y. ruled against EPA. The court subsequently vacated the directive’s language excluding grant recipients from committees and sent it back to EPA for review. As a result, until EPA modifies its decision or fixes procedural defects the court identified, EPA cannot categorically prohibit grant recipients from serving on advisory panels.

On the other hand, D.D.C. and D. Mass. both ruled in favor of EPA, concluding that the courts didn’t have the power to review the directive. The challengers appealed the cases to the D.C. Circuit Court of Appeals and the 1st Circuit Court of Appeals, respectively. Both circuit courts overturned the lower courts’ decisions and sent the cases back to the district courts to reconsider the substantive arguments in the case. The 1st Circuit’s decision was primarily procedural, but the D.C. Circuit’s opinion offers insight into how that court views agency science.

The D.C. Circuit’s Opinion

Physicians for Social Responsibility (Physicians), the lead group in the D.C. case, advanced multiple arguments, including that EPA violated the Administrative Procedures Act (APA). The APA requires that agency action not be “arbitrary and capricious.” To ensure changes in agency policy meets this standard, courts require that agencies provide a reasoned explanation and consider the important aspects of the problem.[4] Agencies do not need to prove that the new policies are better than the previous policies.[5]

Physicians allege that to fulfil its obligation for reasoned decisionmaking, EPA needed to explicitly address the Office of Government Ethics’ guidelines and previous EPA policy that did not find receipt of a grant to be a conflict of interest.[6] EPA’s directive didn’t mention these guidance documents. EPA argues that the directive was not the type of policy change covered by the APA.[7] Rather, it was a statement of appointment principles, committed to the sole discretion of the EPA Administrator and not subject to the court’s review.

Judge Tatel of the D.C. Circuit ultimately agreed with Physicians’ argument that the directive violated the APA. In reaching that conclusion, he focused on the connection between the scientific advisory committees and EPA’s statutory mandates:

The Administrator’s failure to address [the Office of Government Ethics] and EPA’s contrary conclusions is especially glaring given that the prior regime existed, in part, for the very purpose of facilitating the critical role played by EPA’s scientific advisory committees. As noted above, EPA operates pursuant to multiple statutory mandates requiring that its decisions rest on various formulations of “the best available science.” And as EPA’s Peer Review Handbook explains, the agency’s prior policy—allowing EPA grantees to serve on advisory committees—existed, in part, to “ensure that the scientific and technical bases of its decisions . . . are based upon the best current knowledge from science, engineering, and other domains of technical expertise; and . . . are credible.”[8]

Judge Tatel recognizes that the directive is more than just a simple EPA appointment policy, given the importance of EPA’s scientific advisory committees and the consequences of such a change. Because EPA’s previous policy served the purpose of facilitating EPA’s legal obligations, EPA cannot enact such a change without considering the broader context. Judge Tatel writes further:

The question, of course, is not whether the Directive, in fact, shrinks EPA’s pool of experts but rather whether EPA has given an adequate explanation for its new policy. And in failing to grapple with how EPA’s policy affected its statutory scientific mandates, the Directive “failed to consider an important aspect of the problem.”[9]

In line with the APA’s requirements, Judge Tatel doesn’t question the validity of EPA’s policy but rather focuses on the process. To comply with the law, EPA must carefully consider how changes to its scientific processes affects EPA’s ability to meet its statutory mandates. The agency cannot separate the two without any meaningful explanation or treat this policy like an insignificant change to EPA appointments. Though the legal requirement is procedural, in practicality, it reflects a presumption in favor of sound science, just like the environmental laws affected by such policies.

Conclusion

The conflict of interest directive is only one of many examples of the Trump EPA’s changes to agency science and its attempts to split EPA’s scientific apparatus and its legal obligations. Judge Tatel’s decision may provide a preview of how the DC Circuit will review these actions as they are litigated.

Most notably, EPA has proposed a rule that seems to ignore its statutory science mandates and would limit the studies EPA can rely on based solely on the accessibility of their underlying data. Judge Tatel’s decision suggests that if EPA finalizes such a rule, the agency will need to at least thoroughly consider how the rule will affect EPA’s science-based statutory obligations and provide an adequate justification for the policy change. Something the agency has yet to do in its original or supplemental proposed rule.

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[1] Physicians for Social Responsibility v. Wheeler, No. 1:17-CV-02742-TNM (D.D.C. filed Dec. 21, 2017).

[2] Union of Concerned Scientists v. Wheeler, 1:18-cv-10129-FDS (D. Mass. filed Dec. 23, 2018).

[3] Natural Resources Defense Council, Inc. v. EPA, 1:19-cv-05174-DLC (S.D.N.Y. filed June 3, 2019).

[4] F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).

[5] Id.

[6] Brief for Appellant at 46, Physicians for Social Responsibility v. Wheeler, No. 19-5104 (D.C. Cir. Oct. 28, 2019).

[7]  Initial Brief for Appellee at 18 – 27, Physicians for Social Responsibility v. Wheeler, No. 19-5104 (D.C. Cir. Oct. 28, 2019).

[8] Physicians for Social Responsibility v. EPA, No. 19-5104, slip op. at 19–20 (D.C. Cir. Apr. 21, 2020) (internal citations omitted).

[9] Id. at 20.