Energy and Environment Monitor

Courts Reject Challenges to Directive Prohibiting EPA Grant Recipients from Participation on Federal Advisory Committees

March 26, 2019

By: Robert G. McLusky

          EPA’s Science Advisory Board (“SAB”) is one of eight statutorily established Federal Advisory Committees established under the Federal Advisory Committee Act to provide guidance on various environmental and health issues to EPA and other federal agencies.[1]  See 5 U.S.C. App. There are 14 others established by the President or agency heads. Throughout the Obama administration, industry frequently complained that EPA manipulated the SAB process by unfairly restricting the scope of inquiry or “charges” given the SAB and by loading the committees appointed to review particular topics with academics who were heavily funded by and beholden to the EPA. 

 

          In October 2017, the Trump EPA responded to the criticism with a Directive.  The Directive requires that FACA membership “shall be independent from EPA … includ[ing] a requirement that no member of an EPA federal advisory committee be currently in receipt of EPA grants.”  See Directive, ¶ 1.  At least two challenges to the Directive have now been mounted and rebuffed.  The claims of those opposing the Directive have surely also suffered a setback this week with reports that Duke University researchers fudged data in grant applications and progress reports submitted to EPA and the National Institutes of Health.

 

          In NRDC v. Wheeler, a federal court in New York ruled on March 21, 2019 that the Natural Resources Defense Council lacked standing to challenge the Directive.  There, the NRDC argued that the Directive was reviewable as a final agency decision under the Administrative Procedures Act and offered 3 arguments for vacating it: i) that it did not explain how the Directive comported with FACA statutory requirements that committees be fairly balanced, not inappropriately influenced by special interest, and that members have appropriate scientific expertise; ii) that it did not explain EPA’s reasons for reversing its policy that members could receive EPA grants without violating a governmental conflict of interest statute (18 U.S.C. § 208) and rules administered by the Office of Government Ethics; and iii) that the Directive was adopted without undergoing required notice and comment requirements. 

 

          EPA moved to dismiss the Complaint, arguing that: i) the NRDC lacked standing; ii) that the claims were not ripe; and iii) that the NRDC’s claims were not reviewable because the Directive does not constitute final agency action and because no law or rule created meaningful standards for reviewing the Directive.  

 

          To demonstrate that it had “standing” to challenge the Directive, the NRDC claimed four separate injuries to itself or its members.  First, an injury to its organizational objective of ensuring science if used to inform the regulatory process by skewing committee membership in favor of regulated industries.  Second, that the Directive disparaged the reputation of its members by hinting they were unable to serve independently.  Third, that it limits its members’ professional opportunities by denying them the opportunity to join a FACA committee and to obtain EPA grants.  And, fourth, that the Council and its members suffered procedural injury because of a lack of public notice and an opportunity to comment.

 

          The Court ruled that this was not enough.  The NRDC did not demonstrate that it had diverted any of its resources from its normal activities as a result of the Directive, and that its claimed concerns with scientific integrity were merely an “abstract concern” rather than a “concrete injury.”  Further, the Court noted that concerns about skewing the committees in favor of industry could only constitute an injury to someone with a direct interest in or who was directly affected by a specific committee’s work.  It found the same concerning the NRDC’s concerns about reputational injury—that they were merely concerns.  And, finally, the Court found that the NRDC had not shown that, at the time its lawsuit was filed, any of its members had been removed or barred from a FACA committee as a result of the Directive.

 

          In a ruling the month before, the D.C. District Court dismissed a similar claim by the Physicians for Social Responsibility, but only after finding that it HAD demonstrated standing to challenge the Directive.  See Physicians for Social Responsibility v. Andrew R. Wheeler, Case No. 1:17-cv-02742.  There, two of the individual physician members of the group had either already been removed from the SAB or faced imminent removal unless agreeing to forego EPA grants.  That, the Court concluded, was a sufficiently concrete injury to establish standing.  The Court then, however, dismissed the suit itself as not stating a proper claim.  

 

          The Physicians argued that the Directive conflicted with conflict of interest rules of the Office of Government Ethics.  The Ethics Act and accompanying rules generally prohibit government employees, including FACA Committee members, from participating in matters that will have a direct and predictable effect on their own financial interests.  18 U.S.C. § 208(a).  But, employees may escape the prohibition when the appointing official certifies that the need for the individual’s service outweighs the potential for a conflict or when a particular financial interest is considered too remote to affect the integrity of the service.  15 U.S.C. § 208(b)(2) & (3); 5 C.F.R. §§ 2635.401-03 & 2640.201-03.  The Court found no conflict between the rules and the Directive, observing that they have different ends.  The conflict of interest statute and rules establish the outer limits of potential conflicts that will be tolerated without subjecting appointees to civil and criminal penalties, but do not prohibit EPA from using its appointment discretion to further limit those who will be appointed. 

 

          The Physicians also claimed that EPA had to obtain the OGE’s concurrence before adopting the Directive, but the Court noted that the OGE’s rules themselves provide that they do not create an enforceable right.  Relying on the APA again, the Physicians also argued that the Directive violated those portions of the FACA appointment statute requiring that committees be “fairly balanced.”  Here, the Court ruled that the APA provides no recourse because the FACA statutory provision did not provide a “meaningful standard against which to judge the agency’s exercise of its discretion.”  That is, while the statute requires that membership “be fairly balanced in terms of the points of view represented and the functions to be performed” it does “not define what constitutes a ‘fairly balanced’ committee—in terms of points of view represented or functionality—or how the balance is to be determined.”  Likewise, the Court rejected a claim that the Directive frustrated a statutory direction to recruit the most qualified scientists, noting that the statute did not contain such a directive and that such a directive would likely be committed in any event to EPA’s unreviewable discretion. 

 

          Finally, the Court determined that EPA had adequately explained what was clearly a change in policy.  Noting first that an agency may not depart silently from a prior policy, the Court found that EPA in both the Directive and an accompanying memo had explained that its changes were intended to remove any appearance of conflict.