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Trump EPA’s Constraints on Science Advisers Unlawful: Court (1)

April 21, 2020, 3:13 PM; Updated: April 21, 2020, 5:16 PM

The Trump administration violated the law when it tightened membership requirements for powerful EPA advisory boards, the D.C. Circuit ruled Tuesday.

The decision is a critical victory for environmental groups and scientists who have denounced the EPA’s updated approach for years. Advisory boards affected by the policy have advised the Trump administration on multiple major regulatory decisions since EPA issued the directive in 2017.

Earthjustice attorney Neil Gormley, who represented the challengers in the case, called the decision “a resounding win for science.”

“What we’ve seen is a return to bedrock principles here: the bedrock principles that administrative agency action is reviewable, that EPA’s decision should be guided by science, and that EPA needs to justify all its actions in a rational way,” he told Bloomberg Law.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed with Physicians for Social Responsibility and other groups that said the Environmental Protection Agency’s decision to block its grant recipients from serving as advisers conflicted with federal ethics regulations and the Administrative Procedure Act.

‘Especially Glaring’

The EPA failed to explain why it adopted a policy that conflicted with recommendations from the federal Office of Government Ethics, the appeals court said.

“The Administrator’s failure to address OGE and EPA’s contrary conclusions is especially glaring given that the prior regime existed, in part, for the very purpose of facilitating the critical role played by EPA’s scientific advisory committees,” Judge David S. Tatel wrote in the opinion.

“As noted above,” he added, “EPA operates pursuant to multiple statutory mandates requiring that its decisions rest on various formulations of ‘the best available science.’”

The EPA declined to comment on the ruling, citing the pending status of the litigation.

Directive Out in 2017

The EPA issued the contested directive in 2017, barring 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.

The agency said the change was necessary to eliminate potential pro-agency bias on the boards.

Critics said the policy was designed to keep the most qualified experts off advisory committees and make room for industry-friendly replacements.

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

Other challengers filed lawsuits in Massachusetts and New York. The U.S. District Court for the Southern District of New York struck down the EPA’s policy in a pair of recent decisions, and a federal appeals court revived the Massachusetts case in March.

What’s Next

The status of the EPA’s membership policy for advisory boards is now in limbo.

The earlier New York court decision scrapped the 2017 directive entirely, but the EPA still can appeal that ruling.

Tuesday’s D.C. Circuit ruling remanded the case to a lower court to sort out what should happen to the policy as a result of the legal deficiencies. The Trump administration could ultimately opt to request reconsideration from the D.C. Circuit.

Gormley, the Earthjustice lawyer, said his clients will push to nix the 2017 policy. Various EPA decisions rooted in advice of reconstituted advisory boards could face added legal vulnerability, “especially if you can make a connection between the flaws in the policy and the review by a scientific advisory committee whose membership was skewed,” he said.

Former Science Advisory Board member Joe Arvai, a plaintiff in the D.C. Circuit case, said in a statement that “the critical next step is to begin the slow but essential process of restoring expertise and credibility at the EPA.”

The D.C. Circuit case is Physicians for Soc. Responsibility v. Wheeler, D.C. Cir., No. 19-5104, 4/21/20.

(Additional reporting throughout.)

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com

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