The EPA should get science advice from the most qualified experts, and they have a golden opportunity to make that happen. Today, the Center for Science and Democracy at the Union of Concerned Scientists and several other public interest organizations formally asked EPA Administrator Wheeler to reopen the nominations process for its advisory committees to solicit nominations of individuals EPA previously deemed ineligible to serve because of their receipt of EPA grant funding, and to reinstate individuals to committees from which they were unjustifiably removed. The letter was signed by UCS and Earthjustice, Environmental Defense Fund, International Society for Children’s Health and the Environment, Natural Resources Defense Council, Physicians for Social Responsibility, and Protect Democracy.
This call is in response to EPA’s June announcement that it was rescinding its 2017 memo that barred scientists receiving EPA grant funding from serving on advisory committees. UCS, represented pro-bono by Jenner & Block and the nonprofit Protect Democracy, joined an individual advisory committee member in suing EPA to rescind the policy. NRDC and a coalition led by Earthjustice filed separate lawsuits challenging the memo. The courts ruled that the policy was illegal and unjustified.
While nothing can be done to make up for the lost expertise and service on these committees as a result of the nearly three-year-old memo, our organizations are calling on the agency to help make it right from this point on. Dozens of scientists were removed from EPA’s committees or not renewed to second term (as is common practice) as a result of their receipt of EPA grant funding to conduct research. The administrator should work with all of its federal advisory committees to ensure that individuals who should have served on these committees, but were wrongly deemed ineligible by former Administrator Pruitt’s memo, are reinstated on committees and that ongoing nominations processes (like that of the Science Advisory Committee on Chemicals and its Science Advisory Board) are reopened to allow for scientists previously barred to be considered for open positions. These actions will help to ensure that qualified, independent scientists have a seat at the table and can offer the agency advice on issues relating to environmental and public health, benefiting us all.
Here’s the letter we sent to Administrator Wheeler:
Via e-mail July 21, 2020
Re: Request to reopen nomination process for EPA advisory committees
Dear Administrator Wheeler:
The undersigned organizations call upon EPA to reopen the nominations process for its advisory committees to solicit nominations of individuals EPA previously deemed ineligible to serve because of their receipt of EPA grant funding, and to reinstate individuals to committees from which they were unjustifiably removed. EPA’s 2017 directive restricting individuals with grant funding from serving on committees was struck down in June by the U.S. District Court for the Southern District of New York, which ruled that the policy was arbitrary and capricious under the Administrative Procedure Act.[1] Soon after, the U.S. Court of Appeals for the D.C. Circuit agreed that the directive was illegal, ruling that EPA failed to give a rational explanation for its decision to exclude highly qualified grantees and failed to obtain the approval of the Office of Government Ethics.[2] These decisions came after the U.S. Court of Appeals for the First Circuit rejected EPA’s argument that the directive was not judicially reviewable.[3] EPA has now announced that it will no longer apply this illegal policy.[4]
EPA grants are funded through a highly competitive process on the basis of merit and promise. Recipients tend to be among the most knowledgeable experts on the issues upon which EPA is seeking advice. That is why, when this Administration issued a directive preventing such individuals from serving on advisory committees, so many took notice and spoke out in opposition.[5] Now that the directive has been rescinded, the Agency must ensure that the most qualified individuals in their fields have the opportunity to advise on critical science and policy issues.
Many EPA grant-funded scientists are at the top of their fields and possess critical, or even irreplaceable, highly relevant knowledge that the Agency needs to make health-protective and scientifically defensible policy decisions. In light of this and the Courts’ decisions noted above, EPA should now provide an opportunity for EPA grant-funded experts to apply for or be nominated to positions on all EPA advisory committees. This should be done immediately for those committees for which EPA is already in the process of identifying candidates: EPA’s Science Advisory Board and subcommittees,[6] Science Advisory Committee on Chemicals,[7] National Drinking Water Advisory Council,[8] and National and Environmental Government Committees.[9]
Further, for all individuals who were removed from boards or whose terms were not renewed because they were receiving EPA funding between the time the 2017 policy was announced and the present, EPA should notify them of the change in policy, solicit their interest, and, if the individuals are interested, reinstate them onto the advisory committees on which they previously served.
Without consideration of all such eligible scientists, EPA will continue to receive insufficient science advice. Thus, we further call upon the Agency to suspend any ongoing process to fill positions on these advisory committees until the restoration of committees and the nominations process for experts EPA previously deemed ineligible is completed. These steps would not address prior flawed changes made to advisory committees’ composition and structure, such as those made to the Clean Air Scientific Advisory Committee for the particulate matter NAAQS review.[10] However, they would at least allow for a more diverse, qualified, and independent composition on EPA’s advisory committees and would better ensure the Agency receives the best available science advice on matters protecting the environment and public health. If you have any questions or require additional information, please contact Genna Reed at the Union of Concerned Scientists at [email protected].
Sincerely,
Center for Science and Democracy, Union of Concerned Scientists
Earthjustice
Environmental Defense Fund
International Society for Children’s Health and the Environment
Natural Resources Defense Council
Physicians for Social Responsibility
Protect Democracy
[1] Nat. Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency, 438 F. Supp. 3d 220 (S.D.N.Y. 2020).
[2] Physicians for Soc. Responsibility v. Wheeler, 956 F.3d 634 (D.C. Cir. 2020).
[3] Union of Concerned Scientists v. Wheeler, 954 F.3d 11 (1st Cir. 2020).
[4] U.S. Environmental Protection Agency (EPA). 2020. EPA Will Not Appeal Adverse SDNY Decision Regarding October 31, 2017 Federal Advisory Committee Directive, June 24. Online at https://www.epa.gov/newsreleases/epa-will-not-appeal-adverse-sdny-decision-regarding-october-31-2017-federal-advisory, Accessed July 15, 2020.
[5] Union of Concerned Scientists. 2020. Pruitt Actions on EPA Advisory Board Undermine Independent Science, Put Americans at Risk, October 31. Online at https://ucsusa.org/about/news/pruitt-actions-epa-advisory-board, Accessed July 15, 2020.
[6] EPA. Request for Nominations of Candidates to the EPA’s Science Advisory Board (SAB) and SAB Standing Committees. Federal Register 85, no. 63 (April 1, 2020):18225. Online at https://www.govinfo.gov/content/pkg/FR-2020-04-01/pdf/2020-06660.pdf, Accessed July 15, 2020.
[7] EPA. TSCA Science Advisory Committee on Chemicals; Request for Nominations. Federal Register 85, no. 55 (March 20, 2020):16094. Online at https://www.govinfo.gov/content/pkg/FR-2020-03-20/pdf/2020-05827.pdf, Accessed July 15, 2020.
[8] EPA. The National Drinking Water Advisory Council: Request for Nominations. Federal Register 85, no. 114 (June 12, 2020):35930. Online at https://www.govinfo.gov/content/pkg/FR-2020-06-12/pdf/2020-12727.pdf, Accessed July 15, 2020.
[9] EPA. Request for Nominations to the National and Governmental Advisory Committees to the U.S. Representative to the Commission for Environmental Cooperation. Federal Register 85, no. 70 (April 10, 2020): 20267. Online at https://www.govinfo.gov/content/pkg/FR-2020-04-10/pdf/2020-07527.pdf, Accessed July 15, 2020.
[10] Independent Particulate Matter Review Panel. 2020. The Need for a Tighter Particulate-Matter Air-Quality Standard, June 10. New England Journal of Medicine. DOI: 10.1056/NEJMsb2011009. Online at https://www.nejm.org/doi/full/10.1056/NEJMsb2011009, Accessed July 15, 2020.