Posted on by sgoho

In two recent decisions in cases in which the Emmett Environmental Law & Policy Clinic filed amicus briefs, federal courts ruled against a 2017 Environmental Protection Agency (EPA) directive.  The cases involve a directive issued by former EPA Administrator Scott Pruitt that barred scientists who receive EPA research grants from serving on any of the agency’s advisory committees.  The directive had the effect of removing many academic scientists from these advisory committees, where many of them have been replaced by scientists who work for or are affiliated with regulated industries.  This directive, part of the Trump administration’s broader attack on the role of science in EPA decisionmaking, has now been decisively rejected by both the D.C. Circuit Court of Appeals and the U.S. District Court for the Southern District of New York in separate legal challenges.

EPA’s Science Advisory Committees and Research Grants

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 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.

Another way in which EPA has ensured that its decisions are based on the best possible scientific evidence is by awarding research grants so that scientists can explore emerging issues relevant to the agency’s mission.  EPA research grants are highly competitive and result in high-impact research.  For example, a National Academy of Sciences review of one category of EPA grants found that “half the grants analyzed had at least one publication that was among the most highly cited publications in their field.”  Because academic scientists depend on grants to fund their research while industry scientists receive funding directly from their employers, EPA grant recipients are usually academic scientists.

The Directive

EPA Administrator Pruitt issued the directive, titled “Strengthening and Improving Membership on EPA Federal Advisory Committees,” on October 31, 2017.  The Directive provides that, in order to “[s]trengthen [m]ember [i]ndependence” on EPA’s advisory committees, “[m]embers shall be independent from EPA, which shall include a requirement that no member of an EPA federal advisory committee be currently in receipt of EPA grants.”  This prohibition, however, does “not apply to state, tribal or local government agency recipients of EPA grants.”  This directive, which did not go through a notice-and-comment rulemaking process, was accompanied by a memorandum that provided only the most cursory explanation for its contents.  In particular, the memorandum justified the exclusion of grant recipients from advisory committees by stating that the receipt of an EPA grant “can create the appearance or reality of potential interference with their ability to independently and objectively serve as [an advisory committee] member.”

In the wake of the directive, a number of scientists were removed from EPA advisory committees because they held EPA research grants.  Others chose to give up their grants so that they could remain on a committee.

The Litigation

Three lawsuits were filed to challenge the directive, in the federal district courts for Massachusetts, District of Columbia, and Southern District of New York.  In these lawsuits, the plaintiffs argued—among other things—that the directive violated the uniform federal ethics rules, the Federal Advisory Committee Act, and the statutes that establish specific science advisory committees, and that it was arbitrary and capricious in that it represented a change in EPA policy for which the agency had not provided an adequate explanation.

The initial district court rulings were not favorable for the plaintiffs.  The district court judges in D.C. and Massachusetts dismissed the cases, holding that the directive was committed to agency discretion by law and that, even if it were not, it was not arbitrary and capricious.  The judge in the S.D.N.Y. dismissed for lack of standing.  The plaintiffs appealed the D.C. and Massachusetts decisions to the Courts of Appeals for the D.C. Circuit and First Circuit, respectively, and re-filed in the Southern District of New York.

The Emmett Clinic’s Amicus Briefs

The Clinic filed amicus briefs in all three 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 briefs on behalf of a distinguished group of former senior officials in EPA and other federal agencies:

  • 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 Goho, Clinical Fellow Lynne Dzubow, and Clinic student Erik Federman (JD ’18) researched and wrote the briefs.  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.

The Recent Rulings

In all three cases, the courts have recently issued favorable rulings for the plaintiffs.  In the First Circuit, the court on March 23, 2020, reversed the district court’s dismissal of the case, holding that the directive was not committed to agency discretion by law or otherwise unreviewable.  It remanded the case for further proceedings.

In the S.D.N.Y., on February 10, 2020, Judge Cote held that the directive was arbitrary and capricious because EPA did not provide a reasoned explanation for its change of policy and did not take the reliance interests of scientists who both held EPA grants and served on advisory committees into account.  On April 15, 2020, Judge Cote rejected EPA’s argument that the directive should remain in place to allow the agency to supply a new rationale, instead vacating the directive.

Finally, on April 21, 2020, the D.C. Circuit also found that the directive was arbitrary and capricious and that it was invalid because EPA did not issue it through the process required for regulations that supplement the Office of Government Ethics regulations.  The unanimous D.C. Circuit panel, in an opinion by Judge Tatel, held that “an agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored.  That ‘analysis’ is entirely missing from the Directive and its accompanying Memorandum.”  The court remanded the case to the district court for further proceedings.

These rulings provide an unequivocal rejection by the courts of one of the Trump administration’s main efforts to reduce the role of independent science at EPA.  However, much of the damage from this directive has already been done.  According to an analysis by the Union of Concerned Scientists, the makeup of EPA’s Science Advisory Board shifted from being 79% university scientists in 2017 to 47% in 2019.  In the same time period, the percentage of industry scientists went from 6% to 22% and consultants (mostly industry-affiliated) went from 2% to 18%.

The Energy and Environmental Law Program at Harvard Law School has been tracking EPA’s actions to remove scientists from its advisory committees.  You can see all of the updates here.