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First Circuit Decision Signals Vulnerability of EPA Directive Limiting Scientist Membership in Advisory Committees

Historically, the U.S. Environmental Protection Agency has relied upon advisory committees comprising members from the scientific community to advise the EPA on the development and implementation of regulations. The Trump Administration has taken measures in recent years to constrain the authority and composition of these committees. But the First Circuit’s recent decision in Union of Concerned Scientists v. Wheeler signals a limit on these measures – ruling in favor of a challenge to the administration’s attempt to bar scientists who had received EPA grants from being members of advisory committees.

The decision is notable to the regulated entities for two reasons: first, because the decision may lead to more scientists being permitted to participate in these committees; and second, because the decision provides guidance regarding how future challenges in this area must be lodged.

Policy Background and Procedural History

In October 2017, the Trump Administration issued an executive directive precluding most EPA grant recipients from being members of EPA advisory committees in order to avoid potential financial conflicts of interest. Prior to 2017, the EPA had not found any financial conflict of interest where prospective or current advisory committee members received EPA grants.

The October 2017 policy change was challenged by the Union of Concerned Scientists (UCS). UCS claimed that the directive violated the Administrative Procedure Act (APA) and the Federal Advisory Committee Act (FACA) insofar as the directive unlawfully favored industry-affiliated members of the scientific community. The FACA requires that membership of any advisory committee be “fairly balanced” in points of view and functions to be performed, and that committees not be “inappropriately influenced” by any special interest. The district court dismissed the UCS’s claims, finding that the “fairly balanced” claim was not justiciable, because the FACA does not define “fairly balanced” and provides no meaningful standard of review to apply to determine whether a committee’s membership has achieved a fair balance.

First Circuit’s Decision Against EPA Directive

The First Circuit disagreed. The Court found that the make-up of agency advisory committees is not an area traditionally left to agency discretion, pointing to the FACA’s mandate that its provisions “shall be followed” by agency heads. It also found that the FACA provides meaningful standards to allow a court to evaluate the lawfulness of agency actions affecting the balance of membership or influence of special interests on advisory committees. The Court explained that “FACA clearly requires agency heads at least to consider whether new restraints on committee membership might inappropriately enhance special interest influence and to eschew such restraints when they do so.” The case has been remanded back to the district court to consider the UCS’s allegations that the EPA’s science adviser directive altered the balance and influence of EPA advisory committees in favor of regulated industries and provided no rational reason that the benefits of the directive justified that alteration.

The decision signals a potential vulnerability in the administration’s recent attempts to shape the scientific advisory committees, although much will depend on the district court’s evaluation of whether the decision to bar certain scientists from committee membership on the basis of receiving grants made committees no longer “fairly balanced.” But the decision also provided helpful insight to all litigants seeking to bring a successful claim under the APA or the FACA. It emphasized that the areas of agency discretion not subject to judicial review are quite narrow and found that the FACA provides meaningful standards for a court to evaluate the lawfulness of agency actions affecting the balance of membership or influence of special interests on advisory committees.

© 2020 Schiff Hardin LLP

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About this Author

Robert D. Boley Litigation Attorney Schiff Hardin Ann Arbor, MI
Associate

Rob represents clients in a wide range of litigation matters, including complex commercial and environmental disputes, and white collar investigations and litigation. He has experience representing clients before state and federal courts, as well as in investigations by government agencies and self-regulatory organizations.

Before joining Schiff Hardin, Rob was a litigation associate in the Chicago office of an international law firm.

Experience

  • Represented a Fortune 100 manufacturer in multiple lawsuits by regulators and property owners asserting claims under...
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J. Michael Showalter, Litigator, Schiff Hardin LLP
Associate

Mike Showalter is a litigator whose practice is focused on resolving complex disputes. Mr. Showalter's past clients span diverse industries including manufacturing, mining, power generation and transmission, oil and gas, the financial and insurance sectors, and process outsourcing.

Mr. Showalter's practice has focused on distilling complicated technical information into a format where it can be understood by decision makers. He has worked with experts in fields including medicine, economics, history, physical sciences, industrial hygiene, toxicology, environmental engineering and risk assessment.

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