In October 2017, former EPA Administrator Scott Pruitt hurled a lightning bolt at the environmental science community when he announced that no individual who is benefiting from an EPA-issued grant may serve on an EPA federal advisory committee (FAC).  The intent of the new directive was to eliminate “the appearance or reality of potential interference with [FAC members’] ability to independently and objectively serve as a FAC member.” The EPA currently operates 22 science FACs that advise the Agency on many aspects of human and environmental health under the EPA’s purview.

Several scientific organizations, as well as several members of EPA FACs who were forced to withdraw because of the directive, decided to sue the Agency, alleging among their four claims that the directive ran afoul of the federal conflict-of-interest statute (18 U.S.C. Section 208) and that the effect of the policy is the unfair removal from FACs of otherwise qualified scientists.

The case was heard by Judge Trevor N. McFadden, who was appointed by President Donald Trump to the U.S. District Court for the District of Columbia and assumed his office on October 31, 2017. The EPA asked that the plaintiffs’ claims be dismissed because they are outside the reach of the conflict-of-interest statute and not contradictory to federal standards of ethics. The judge agreed and dismissed all four claims, pointing out that the Pruitt directive was issued in full accordance with the Agency’s broad discretion to set an “appointment policy.”

Pruitt’s directive is here; an accompanying memo is here. We briefly describe the four counts the plaintiffs brought against the EPA and McFadden’s reasons for dismissing each.

Conflict of interest

Claim: The directive violates the conflict-of-interest statute and regulations of the federal Office of Government Ethics (OGE).

Section 208 prohibits government employees from participating in matters that will have a direct and predictable effect on their own financial interests or on the financial interests of close associates. OGE regulations allow exceptions when the particular financial interest is too remote or too inconsequential to affect the integrity of the services of the employees.

The plaintiffs’ claim is a kind of backward use of the statute. Basically, their argument is that because an employee does not have a conflict of interest under the statute, the EPA must appoint such person as a FAC member or may not discharge the person. McFadden disagreed, stating:

“That someone may serve on an advisory committee without incurring liability under the conflict-of-interest statute does not dictate that an agency must appoint him as a member. While EPA clearly cannot appoint someone to an advisory committee that Section 208 prohibits, Section 208 does not require EPA to appoint anyone not otherwise excluded under the statute. In other words, Section 208 and OGE regulations function as a floor, not a ceiling, for acceptable government service.”

Put another way, added McFadden, the conflict-of-interest statute and OGE regulations establish only a uniform ethical floor that agency heads may not dip below. They do not constrain an agency’s ability to appoint and retain individuals under a higher ethical standard.

OGE concurrence

Claim: The EPA had to obtain the OGE’s concurrence before issuing the directive.

When an agency wishes to supplement the uniform federal ethics rules, it must prepare and submit the proposed supplemental regulation to the OGE for concurrence and joint issuance. Only “[a]fter concurrence and co-signature by [the OGE]” may the agency submit its supplemental regulations for publication and codification in the Code of Federal Regulations.

McFadden does not disagree that the EPA did not obtain OGE concurrence with the directive. However, he adds that the courts are precluded from reviewing alleged violations of these procedural requirements. Second, an agency action in this regard is only reviewable by the courts when an agency wishes to supplement the OGE regulations. According to McFadden, the directive does not supplement the OGE’s ethics regulations.

“EPA promulgated the Directive under authority separate from the conflict of interest statute and the OGE regulations,” McFadden wrote. “It is a statement of how the Administrator will exercise his discretion to determine committee membership. EPA thus was not required to issue the Directive in consultation with OGE.”

Fair balance

Claim: The directive frustrates a provision under the Federal Advisory Committee Act (FACA) that FACs be “fairly balanced.”

McFadden suggests that there is too much ambiguity in the phrase “fairly balanced” to substantiate a claim.

Citing case law, he writes that FACA does not define what constitutes a “fairly balanced” FAC or how the balance is to be determined. Even before the points of view on a FAC can be balanced at all—fairly or otherwise—it must first determine which points of view should be balanced. But there is no principled basis for a federal court to determine which among the myriad points of view deserve representation on particular FACs.The relevant points of view on issues to be considered by a FAC are virtually infinite, wrote McFadden,nor is there a “principled way” to determine whether those views are fairly balanced, he added.

Most qualified scientists

Claim: The directive frustrates the statutory direction to recruit the most qualified scientists and make subject matter expertise the principal factor in determining membership.

McFadden responds that while many statutes establishing EPA FACs have specific qualification requirements for members, they do not explicitly require the Agency to appoint the “most qualified” scientists or make subject matter expertise the “principle factor in determining membership.”

“No doubt EPA aspires to recruit the ‘most qualified’ scientists and subject matter experts, but evaluating the relative qualifications of potential committee members is exactly the kind of discretionary decision-making that is precluded from judicial review,” explains McFadden.

Weighing the qualifications of potential FAC members requires “complicated balancing,” McFadden adds, and the statutes that establish the EPA’s FACs offer no meaningful standard for assessing whether the Agency has selected the “most qualified” potential member.

Reason for change

Finally, McFadden dismisses the plaintiffs’ argument that the Agency failed to adequately explain why it changed its FAC membership policy. For example, the Agency’s memo states that while receipt of grant funds from the EPA may not constitute a financial conflict of interest, receipt of that funding could raise independence concerns depending on the nature of the research conducted and the issues addressed by the committee.

“The Directive is a reasonable exercise of the Administrator’s broad appointment discretion, and EPA’s explanation that it sought to ‘ensure integrity and confidence in its advisory committees’ fits comfortably within the zone of reasonableness,” wrote McFadden.

McFadden’s opinion in Physicians for Social Responsibility et al. v. EPA is here.