August 14, 2018 – This summer, the Emmett Environmental Law & Policy Clinic has filed amicus briefs in two cases challenging former EPA Administrator Scott Pruitt’s directive to exclude scientists who hold EPA research grants from serving on the agency’s science advisory committees. The Clinic’s briefs, filed on behalf of former senior agency officials from both Republican and Democratic administrations, explain that the directive will undermine EPA’s ability to make scientifically-sound decisions and serves no countervailing beneficial purpose.
EPA, to fulfill its mission to protect human health and the environment, must by statute base many of its decisions on specific types of scientific information and pursuant to discrete, science-based standards. More generally, the regulatory decisions that EPA must make inevitably involve scientific questions such as what impacts various pollutants have on human health and the environment; how those pollutants interact with each other and how they move through the air, water, and soil; and the feasibility and cost of different pollution control technologies. As a result, EPA has always taken the position that its decisions should be based on the best available science—an approach that has produced immense benefits for the American people.
One of the ways that EPA ensures a proper scientific basis for its decisions is through the science advisory committees that it oversees. These committees—including the Science Advisory Board, Clean Air Scientific Advisory Committee, and Federal Insecticide, Fungicide, and Rodenticide Act Scientific Advisory Panel—perform multiple functions. For example, they review EPA’s research strategies and plans, respond to specific research requests from the agency, and review EPA’s scientific conclusions in major rulemakings.
In an unprecedented and legally suspect move, former EPA Administrator Scott Pruitt on October 31, 2017, issued a directive that barred scientists who receive EPA research grants from serving on any of the agency’s advisory committees.
Multiple lawsuits have been filed to challenge this directive, including one in the U.S. District Court for the District of Columbia by Physicians for Social Responsibility along with two other organizations and three individual scientists and another in the U.S. District Court for the Southern District of New York by the Natural Resources Defense Council. In these lawsuits, the plaintiffs argue—among other things—that the directive violates the uniform federal ethics rules, the Federal Advisory Committee Act, and the statutes that establish specific science advisory committees.
The Clinic filed amicus briefs in both of these cases. The briefs explain that the effect of the directive will be to undermine EPA’s ability to base its decisions on the best available science. Because the EPA grant process is very competitive, the scientists who receive these grants are likely to be leaders in their fields. Moreover, the agency directs its research grants towards emerging or newly-recognized environmental questions. As a result, the recipients of that funding become experts on highly specialized scientific issues likely to come before the agency. The directive, then, keeps some of the most qualified scientists off of EPA science advisory committees.
In addition, the Clinic’s briefs argue, the directive tries to solve a problem that does not exist. The directive’s stated purpose is to prevent conflicts of interest on advisory committees and remove bias towards the agency. Yet an effective and detailed conflict of interest framework already governed these and all federal advisory committees before the directive took effect. Office of Government Ethics guidelines do not treat grant funding as a disqualifying conflict of interest. As a result, EPA science advisory committees have always welcomed scientists who received grant funding from either the agency or from regulated industries.
Moreover, if committee members’ sources of funding did present a disqualifying conflict of interest, then the directive adopts a partial and biased solution to that problem. It bars only scientists who receive EPA grants. These scientists will generally be based at universities. The directive does not, however, bar scientists who receive funding from the regulated industries that will be affected by EPA regulatory decisions. Nothing in the directive provides any justification for treating one source of funding as disqualifying and the other as acceptable.
The Clinic filed the brief on behalf of a distinguished group of former senior officials in EPA and other federal agencies:
- Karl Brooks, Assistant Administrator for EPA’s Office of Administration and Resources Management during 2015-16 and Regional Administrator for EPA Region 7 from 2010 to 2015;
- Lynn R. Goldman, Assistant Administrator for Toxic Substances at EPA, where she directed the Office of Chemical Safety and Prevention (1993–1998);
- Bernard Goldstein, EPA Assistant Administrator for Research and Development under President Reagan and former chairperson of the EPA Clean Air Scientific Advisory Committee;
- David Michaels, Assistant Secretary of Labor for Occupational Safety and Health from 2009 to 2017 and Assistant Secretary of Energy for Environment, Safety and Health from 1998 to 2001;
- Kenneth Olden, Ph.D., Director of the National Center for Environmental Assessment in the Office of Research and Development at EPA between 2012 and 2016, and Director of both the National Institute of Environmental Health Sciences and the National Toxicology Program within the Department of Health and Human Services between 1991 and 2005;
- Bob Perciasepe, Deputy Administrator of EPA from 2009 through 2014 and Acting Administrator from February 2013 through July 2013; he had previously served as Assistant Administrator for Water and Assistant Administrator for Air and Radiation in the Clinton Administration; and
- Terry Yosie, director of EPA’s Science Advisory Board from 1981 to 1988.
Clinic Deputy Director Shaun A. Goho, and Clinic student Erik Federman (JD ’18) researched and wrote the briefs. Stephen E. Roady, professor of the practice of law at Duke Law School, served as local counsel for the filing in the D.D.C. case.
These briefs, along with its recently-filed comments on behalf of senior faculty and administrators at Harvard University on EPA’s proposed transparency rule, are part of the Clinic’s ongoing work to address attacks on the role of science in environmental decisionmaking.