BOSTON (CN) – Tensions ran high at First Circuit arguments Tuesday where several judges raised their voices in frustration with the government’s attempts to defend an order that purged scores of academic and nonprofit scientists from the agency's advisory committees.
“You’d like to think that the EPA gave some thought to the effects of its actions, but this was just a fiat,” complained U.S. Circuit Judge William Kayatta Jr., an Obama appointee. Kayatta described the agency’s attitude as: “well, we’re the EPA, and you’re not.”
But the judges took issue as well with the lack of specificity in the case record about the practical effects of the order, and neither side could answer a number of specific questions.
“How can we determine if the EPA has put a thumb on the scale, or has put a truck on the scale?” Kenyatta asked. “We need to know this.”
U.S. Circuit Judge Sandra Lynch chimed in: “It’s not at all helpful to us if you can’t tell us” how many scientists have been purged and what the effect has been.
The Environmental Protection Agency issued the order in 2017, saying scientists who received an EPA grant could no longer serve on advisory committees because the grant amounted to a conflict of interest. The EPA then removed a large number of scientists who work for universities and nonprofit organizations and replaced them with scientists at companies that the EPA regulates.
Elizabeth Anne Sheppard, a researcher at the University of Washington, gave up an EPA grant so she could remain on a committee. She joined the Union of Concerned Scientists in mounting a court challenge to the rule change. By their count, some 8,000 scientists received EPA grants and are now ineligible to serve as EPA advisers.
The plaintiffs hung their challenge on a federal law that says advisory committees must be “fairly balanced in terms of the points of view represented” and “not be inappropriately influenced by … special interests.” As has been fruitful in many challenges to Trump administration rulemaking, they also invoked the Administrative Procedure Act, which requires that an agency demonstrate reasoned decision-making.
Neither managed to sway a federal judge, however, prompting the challengers to seek relief on appeal from the First Circuit. At Tuesday’s hearing, they appeared to find a more receptive audience.
“Is there anything in the record to show that the EPA considered the effect of the order on its mission?” Kayatta asked. “Suppose the EPA banned all industry scientists. Wouldn’t you have to show that you looked at the effect that would have? I’m having trouble seeing how this is any different.”
“We just chose to strike a slightly different balance,” Justice Department attorney Jeffrey Eric Sandberg replied.
“Where do you get the word ‘slightly’?” Kayatta shot back. “Is that in the record?”
Sandberg pivoted: “We just don’t think this court should be in the business of deciding whether the agency acted appropriately.”
“Even if you were arbitrary and capricious?” interrupted U.S. Circuit Judge Juan Torruella, a Reagan appointee.
Torruella continued: “Did you have any basis to conclude that these 8,000 people were not providing you with independent and objective science?”
“We just wanted to make sure that the committee members were even more beyond reproach than they already were,” Sandberg answered.
Lynch, a Clinton appointee, highlighted the order’s exemption of scientists who worked for state government entities unless that entity was a state university. She asked whether there was anything in the record to show that this distinction was the product of reasoned decision-making. After Sandberg repeatedly hedged, she nearly yelled at him, “Answer the question!”
“There’s nothing in the record,” Sandberg admitted.
Zachary Schauf, a lawyer for the scientists with Jenner & Block in Washington, D.C., said the order amounted to “open season” on independent science. He said upholding it would mean that the EPA could, for example, eliminate any scientists who didn’t work for a coal company from a committee studying air pollution.
The judges repeatedly complained that the lower court simply threw out the case and therefore there was virtually no record as to the order’s background or effect. Although Schauf suggested the judges should simply overturn the order for lack of reasoned decision-making, the judges suggested that they might remand the case instead to develop a better record.
“Reasoned decision-making compared to what?” Kayatta asked.
“You seriously want us to rule on an appeal from a motion to dismiss?” Lynch demanded, suggesting that Schauf would have a stronger case if he could gather more information and show bad faith on the EPA’s part or a violation of other laws pertaining to the agency.
Schauf quickly backpedaled and described his request as a “fallback position.”
“Your fallback position might not be in your best interest,” Lynch observed.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.