For the second time in 2 months, a U.S. district court judge has dismissed a suit claiming that the EPA’s October 2017 directive establishing new guidelines for membership in Agency science committees was illegal.

In the more recent case, Judge Dennis Saylor of the Massachusetts District Court rejected arguments by the Union of Concerned Scientists (UCS) that the directive violates four provisions of the Administrative Procedures Act (APA) and the Federal Advisory Committee Act (FACA). The UCS’s counts against EPA Administrator Andrew Wheeler were fundamentally identical to those previously brought by Physicians for Social Responsibility against former Administrator Scott Pruitt before Judge Trevor N. McFadden in the District of Columbia District Court (Physicians for Social Responsibility v. EPA). Moreover, Saylor denies each of those allegations for the same reasons they were denied by McFadden just 6 weeks earlier in Physicians.

The pivotal finding by both judges is that the EPA administrator has substantial discretion to establish guidelines for the appointment of members to Federal Advisory Committees (FACs) that advise the Agency in its regulatory and other policy actions.

“Like other agency heads, the EPA Administrator has broad discretion over the appointment of FAC members,” wrote Saylor. “By regulation, ‘[u]nless otherwise provided by statute, Presidential directive, or other establishment authority, advisory committee members serve at the pleasure of the appointing or inviting authority. Membership terms are at the sole discretion of the appointing or inviting authority.’”

Excluding qualified scientists

In his October 2017 memo, Pruitt stated that the EPA would no longer allow any individual who is benefiting from an EPA-issued grant to serve on an Agency FAC. According to Pruitt, the directive was intended 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.

Groups that included the UCS and Physicians were outraged by the directive. They argued that the EPA was setting a policy that would exclude some of the most qualified environmental scientists—that is, those in receipt of or benefiting from EPA grants. It would also allow the administrator to replace these individuals with others who more closely represented the scientific inclinations of the administration. In Physicians, McFadden did not dispute this allegation but added that the administrator was perfectly entitled to take such actions. 

“Of course, statutes direct the Administrator to make appointment decisions for advisory committees, and he is likely to select candidates that reflect his policy preferences,” McFadden wrote and Saylor repeated. “But that was true before the Directive. At what point does his influence become inappropriate?”

Four counts denied

Saylor also quoted extensively from Physicians in denying the following four counts:

• The directive violates the APA because, among other things, the Agency did not consider reasonable alternatives or articulate a rational connection between the facts found and the choice made.

Saylor quotes McFadden: “The Directive is a reasonable exercise of the Administrator's broad appointment discretion, and EPA's explanation that it sought to ‘ensur[e] integrity and confidence in [its] [advisory committees]’ fits comfortably within the zone of reasonableness . . .”

• The directive is not consistent with the General Services Administration’s directive for agency heads to review FAC membership eligibility in conformance with applicable conflict-of-interest statutes, regulations issued by the Office of Government Ethics (OGE) (including any supplemental agency requirements), and other federal ethics rules. According to plaintiffs, the EPA directive is inconsistent with those rules and requirements because it mandates that FAC membership eligibility be reviewed based on conflicting criteria.

In rejecting this claim, Saylor cites the following from Physicians: “Agency heads may not craft appointment policies that disregard applicable ethics rules. But the Directive does no such thing. The Directive is “in addition to EPA’s existing policies and legal requirements preventing conflicts of interest.” And, “[I]f an agency selects advisory committee members under a higher ethical standard than what the conflict of interest statute and OGE regulations require, that is entirely compliant with FACA’s requirement that committee members not be conflicted.”

• The directive violates the FACA requirement that committee membership be “fairly balanced in terms of the points of view represented and the functions to be performed.” The specific allegation is that the directive creates FACs that are not fairly balanced because it disproportionately excludes scientists with academic and not-for-profit institutions from service on FACs.

Again referring to Physicians, Saylor agrees that there is no objective standard to apply to determine when an FAC’s membership has achieved a fair balance and when it has not. Effectively, this renders the allegation “nonjusticiable.”

• The directive creates FACs that are inappropriately influenced by special interests because FACs are now disproportionately composed of representatives of private industry and state and local governments.

As with the previous allegation, both judges found this charge nonjusticiable because Congress did not define “inappropriately influenced” or “special interest,” nor did it specify procedures to ensure that FACs are free from “inappropriate influence” within the meaning of FACA section 5(b)(3).

“Among other things, judicial review under section 5(b)(3) would require the Court to first identify whether something is a ‘special interest,’ then decide whether that special interest could ‘influence’ a particular FAC, and, finally, determine whether that influence, if any, rises to the level of ‘inappropriate,’” wrote Saylor. “Again, without any objective standard, such a requirement would be impossible for the Court to administer or apply.”