Scientists Booted From EPA Committees Get New Shot at Suit

BOSTON (CN) — Striking at the state of scientific integrity in Trump’s EPA, the First Circuit revived a lawsuit Monday that says the administration tripled the number of industry affiliates on at least one advisory committee meant to be unbiased.

The Environmental Protection Agency made the shift one year into Trump’s presidency, issuing a directive that said no recipient of agency grant dollars could serve on any of its 22 scientific advisory committees.

Environmental Protection Agency Administrator Andrew Wheeler walks from Air Force One at Andrews Air Force Base, Md., on Oct. 23, 2019. (AP Photo/Kevin Wolf)

Scientists funded by private interests were not subject to any bar, however, and the Union of Concerned Scientists alleged in an ensuing complaint that the EPA had disqualified some 8,000 of America’s leading academic and nonprofit researchers from advisory roles.

Another plaintiff in the case, University of Washington researcher Elizabeth Anne Sheppard, noted that she had to give up her share of a $3 million air pollution grant to keep her committee post.

Decrying the move as a naked attempt by the Trump administration to remove independent scientific voices and increase the influence of business interests, the researchers filed suit under the Federal Advisory Committee Act.

Passed in 1972 after Congress learned that another federal agency was getting input solely from large corporations, the law requires that advisory committees be “fairly balanced in terms of the points of view represented” and “not be inappropriately influenced by … special interests.”

The EPA initially got the case dismissed, arguing that it has broad discretion to choose who serves on its committees and that a judge has no right to second-guess its decisions.

This decision fell into doubt three months later, however, when the U.S. Supreme Court backed the right of states suing over a citizenship question that the Trump’s commerce secretary had foisted into the 2020 U.S. Census. The Supreme Court emphasized that the range of situations in which a federal agency can exercise its judgment without any type of review by the courts is “quite narrow.”

Relying on that precedent, the First Circuit reversed Monday.

“The concepts of fairness, balance, and influence are not foreign to courts, and we are certainly capable of reviewing agency actions with reference to those concepts,” U.S. Circuit Judge William Kayatta wrote for a unanimous three-judge panel.

On remand, Kayatta said the lower court should test the merits of whether the EPA’s directive left its advisory committees “fairly balanced” or “inappropriately influenced” by special interests.

“FACA clearly requires agency heads at least to consider whether new restraints on committee membership might inappropriately enhance special interest influence and to eschew such restraints when they do so,” the Obama-appointed Kayatta continued.

Though the scientists wanted the EPA rule struck down as arbitrary and capricious, the Boston-based appeals court would not go that far.

Kayatta did make a note, however, of the EPA’s conspicuous decision to restrict grant-holding scientists at state universities but not scientists who work in other parts of state government.

U.S. Circuit Judge Sandra Lynch had yelled at EPA lawyer Jeffrey Eric Sandberg at oral argument in December when he hesitated to acknowledge that there was nothing in the record justifying this distinction.

“Answer the question!” the Clinton-appointed Lynch had fumed.

The EPA distributes some $4 billion in annual grants and says the challenged restriction was intended to prevent conflicts of interest.

U.S. Circuit Judge Juan Torruella, a Reagan appointee, rounded out the panel.

%d bloggers like this: