EPA Adviser Policy in Court

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) -- Both sides in a federal appeals case challenging EPA's 2017 decision to prohibit scientists from serving on EPA boards if they have grants from the agency delivered oral arguments Wednesday.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit fired questions at attorneys from the EPA and plaintiffs, led by Physicians for Social Responsibility, in the appeal of a lawsuit that was dismissed one year ago by the U.S. District Court for the District of Columbia.

During oral arguments on Wednesday, EPA attorney Jeffrey E. Sandberg said the case boils down to one fact: The agency can choose advisory board members however it wishes.

"EPA has broad discretion to choose what it wants as advisers," he said. "Federal ethics rules apply to those in federal service. They don't tell the agency who they can and can't hire."

Earthjustice attorney Neil Gormley said EPA's policy contradicts ethics rules in the U.S. Office of Government Ethics, which permits board members to be EPA grant holders.

"EPA failed to rationalize why the previous policy wasn't working," he said during arguments. "This will have a large impact on these committees. EPA failed to address any of this."

In 2017, then EPA Administrator Scott Pruitt issued a directive stating scientists who received EPA grants no longer would be able to serve on the agency's scientific advisory boards.

At the time, EPA did an evaluation of grant funds awarded during the previous three years. The agency found the members of the Science Advisory Board, Clean Air Scientific Advisory Committee and the Board of Scientific Counselors received up to $77 million in EPA grants while serving on the committees.

"Whatever science comes out of EPA shouldn't be political science," Pruitt said during an announcement. "From this day forward, EPA advisory committee members will be financially independent from the agency."

In a December 2017 lawsuit, the plaintiffs argued the requirement was arbitrary and capricious, conflicted with several statutes and regulations governing advisory committees, and was a shift in policy that EPA failed to explain.

EPA argued the plaintiffs lacked standing because the directive was an appointment policy reserved to agency discretion. In addition, the EPA argued the plaintiffs failed to allege a violation of any specific statutory provision.

The district court sided with EPA and dismissed the case in February 2019.

At the time of the EPA announcement, Democratic members of Congress expressed concern Pruitt was attempting to silence some scientists.

The directive said the policy was designed to strengthen independence of members of the committees; to increase state, tribal and local government participation; to enhance geographic diversity on the committees and to promote "fresh" perspectives.

Groups such as the Union of Concerned Scientists said the agency's directive would harm independent science.

The directive received support from the American Petroleum Institute, who claimed the change returned EPA back to its original mission.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

(CZ/AG)

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