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Judges Grapple with Trump EPA Policy on Science Advisers (1)

Feb. 19, 2020, 4:38 PMUpdated: Feb. 19, 2020, 4:55 PM

At least two federal judges appeared skeptical Wednesday of the EPA’s argument that federal ethics rules don’t apply to the agency’s decisions about who serves on its powerful advisory boards.

During oral arguments in Washington, public health groups and scientists took aim at the Environmental Protection Agency’s 2017 directive that bars anyone receiving EPA grant money from serving as advisers.

Earthjustice attorney Neil Gormley argued that the policy conflicts with federal ethics regulations that say those types of financial interests don’t qualify as conflicts of interest, and he said the EPA never properly explained its decision.

Judges David S. Tatel and Judith W. Rogers sparred with Justice Department lawyer Jeffrey E. Sandberg about the government’s argument that the ethics rules don’t apply to “internal housekeeping” matters like who serves on advisory boards.

Sandberg said the case at the U.S. Court of Appeals for the District of Columbia Circuit boils down to a simple principle: The EPA can choose whomever it wants as advisers.

Multiple Lawsuits

The dispute centers on a 2017 policy that bars anyone who receives EPA grant money from serving on teams of outside experts that advise the agency on important scientific and technical issues, including air quality, chemicals, and environmental justice.

Critics argue that the policy kept the most qualified experts from serving on boards, making room for more industry-friendly advisers. Then-Administrator Scott Pruitt maintained that the approach was necessary to eliminate pro-agency bias on advisory boards.

Physicians for Social Responsibility, the National Hispanic Medical Association, the International Society for Children’s Health and the Environment, and three scientists sued over Pruitt’s directive in 2017, lost their case in federal district court, and appealed to the D.C. Circuit.

A similar appeal is pending in the U.S. Court of Appeals for the First Circuit.

Environmentalists won a separate challenge to the policy Feb. 10 in the U.S. District Court for the Southern District of New York. The decision isn’t binding on other courts, but legal experts noted it could be persuasive.

Ethics Rules

Much of Wednesday’s arguments centered on whether federal ethics rules applied to how the EPA manages its advisory boards, and whether the agency was required to explain the reasoning behind the policy change.

Gormley maintained that the agency’s move runs counter to Office of Government Ethics Regulations, which say government grants aren’t conflicts of interest for advisory committee members. He added that the EPA was required to go through procedural steps to explain the rationale behind its change.

Tatel seized on that concern and asked the government’s lawyer where the EPA explained its decision.

“How about one sentence?” he asked.

Sandberg responded that the EPA’s directive was a “gratuitous document” to notify the public of the change, and he maintained the agency wasn’t required to go through official rulemaking procedures. He further argued that the ethics rules don’t tell agencies who they can or can’t hire.

Senior Judge Douglas H. Ginsburg appeared receptive to the EPA’s argument, saying, “It seems to me it’s just an internal directive.”

The case is Physicians for Soc. Responsibility v. Wheeler, D.C. Cir., No. 19-5104, oral arguments 2/19/20.

(Updates with additional reporting throughout.)

To contact the reporters on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com; Maya Earls in Washington at mearls@bloomberglaw.com

To contact the editor responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com

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