Suit Over EPA Advisory Board Shuffle Gets 2nd Wind

The headquarters of the Environmental Protection Agency in Washington (Photo by Jack Rodgers/Courthouse News Service)

WASHINGTON (CN) — The D.C. Circuit on Tuesday revived claims that EPA Administrator Scott Pruitt broke ethics rules when he banned agency-funded scientists from sitting on federal advisory boards.

“Our court has made clear that agencies ‘cannot adopt regulations erasing the presumption of reviewability embodied in the APA unless [the underlying statute] reveals clear and convincing evidence that Congress intended to foreclose judicial review,” U.S. Circuit Judge David Tatel wrote for a unanimous three-judge panel (brackets in original). “Neither the Ethics in Government Act nor the federal conflict-of-interest statute contains such ‘clear and convincing evidence.’”

Three scientists and several nonprofit organizations brought the underlying challenge in 2017 after Pruitt changed the rules for membership on EPA federal advisory committees, saying no one “in receipt of EPA grants … or in a position that would otherwise reap substantial direct benefit from an EPA grant” could serve.

“When we have members of those committees that have receive tens of millions of dollars in grants, at the same time they’re advising the agency on rulemaking, that is not good and that is not right,” Pruitt explained in October 2017.

What Pruitt called a potential conflict of interest, however, researchers in the field called a sign of expertise.

“The reason they have these grants, like any government grant, is to have the people who are often the best scientists in a particular field,” Clark University environmental economist Robert Johnston said in an interview last year. “By excluding people who have EPA grants automatically and replacing them with people who often don’t have the same scientific credentials or who come in from the regulatory community — that leads to concerns regarding what kind of scientific advice you’re getting. And to what extent.”

Though not a party to the action, Johnston was removed from the EPA’s Science Advisory Board after refusing to surrender his grant-funded research on water quality.

In the lawsuit, Physicians for Social Responsibility and the other challengers accused Pruitt of violating the Administrative Procedure Act, which outlines the process through which federal agencies develop and issue regulations. 

Though a federal judge dismissed the suit on the basis that Pruitt’s directive was unreviewable, the D.C. Circuit reversed Tuesday.

“For APA purposes at least, an executive order is a far cry from a final rule ‘adopted pursuant to notice and comment rulemaking and undoubtedly … intended to carry the force of law,’” wrote Tatel, who is a Clinton appointee.

Earthjustice attorney Neil Gormley applauded the outcome.

“Today’s decision is a resounding win for science,” he said in a statement. “The court reaffirmed the critical role of independent science committees at the Environmental Protection Agency, rejected this administration’s extreme argument that it has unreviewable discretion to dismiss independent scientists, and ruled that EPA’s policy of disqualifying leading scientific experts is irrational and illegal.”

Justice Department attorney Jeffrey Sandberg did not return a request for comment.

Prior to Pruitt’s order, the EPA allowed recipients of agency grants to serve on scientific advisory committees as long as they did not address matters related to their individual grants and the agency generally.

Tatel quoted a 2013 report from EPA’s Office of the Inspector General that said the agency “d[id] not consider a prospective or current member’s receipt of an agency or other federal research grant to create the basis for a financial conflict of interest.”

According to guidelines from the Office of Governmental Ethics, grantees may ethically serve on advisory committees if they limit their participation to “topics of broad applicability.”

The Government Accountability Office probed Pruitt’s rule change last year, at the invitation of Senate Democrats, concluding that the move flouted agency procedures and ethics rules.

A separate challenge related to the same rule is pending before the First Circuit.

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