Court Rebukes EPA’s Ban on Independent Science Advisors

February 13, 2020 | 3:14 pm
Ken Lund/CC BY-SA 2.0 (Flickr)
Michael Halpern
Former Contributor

A court this week found serious flaws in the EPA’s exclusion from its advisory committees of academic and non-profit scientists holding grants from the agency. After permitting these eminent scientists to serve (for free!) for decades, the EPA abruptly reversed course in 2017. The U.S. District Court for the Southern District of New York explained that the “EPA was required to provide a ‘reasoned explanation’ for its decision to ‘disregard[] facts and circumstances that underlay or were engendered by the prior policy,” but that the “EPA has failed to do so.”

The lawsuit was filed by the Natural Resources Defense Council. The EPA faces two additional lawsuits challenging the ban from UCS and Earthjustice.

In 2017, in an attempt to increase political control over EPA science advisory panels, disgraced former EPA Administrator Scott Pruitt banned scientists who receive EPA grants from serving on them. But even though Pruitt had defended the ban as necessary to avoid conflicts of interests, a subsequent investigation showed the EPA’s concern with ethics was highly selective and that it “did not consistently ensure that members . . . met federal ethics requirements.”

EPA leaders have consistently failed to provide justification for the scientist ban. From the decision:

The EPA did not articulate why an outright ban on EPA grant recipients would improve the existing policies that required demanding and continuous conflict of interest reviews, as well as publicly recorded recusals whenever an advisory committee considered research conducted by, or that would affect, a committee member…

The administrative record produced by the EPA provides no basis for finding that membership in an EPA advisory committee by scientists who have received competitively awarded, peer-reviewed EPA grants has caused bias in the work of those committees. For example, the EPA has cited no examples of grant recipients providing biased recommendations in their service as advisory committee members…

The other evidence cited by the EPA fares no better. It primarily consists of correspondence from members of Congress and regional interest groups expressing concern about the composition of certain advisory committees. But, none of this correspondence articulates a belief that an actual or perceived conflict of interest may exist when an EPA grant recipient serves on an advisory committee. An agency must “articulate . . . a rational connection between the facts found and the choice made.” State Farm, 463 U.S. at 43 (citation omitted). Here, the EPA has failed to present any facts at all…

The judge also noted the impact that the advice ban has on individual researchers:

Finally, the EPA ignored the reliance interests of scientists who were both recipients of EPA grants and members of EPA advisory committees. The EPA made multi-year commitments to these individuals, then forced them to choose between the two. Committee members structured their research programs and professional commitments based on the prior EPA policy. This change of policy, therefore, undermined reliance interests and required greater explanation from the EPA. 

The scientists who are doing the most relevant research should be able to give science advice to EPA on current and emerging public health threats. Yet since the three lawsuits were filed, the EPA has further politicized its science advice processes, completely eliminating some advisory panels and stacking existing committees and boards with industry representatives, not independent scientists.

This has already meant that the agency’s scientific advisory panels have lacked the expertise necessary to inform the EPA’s decision on air pollution standards. The directive exemplifies the current EPA’s tobacco-style approach to governance: if the science doesn’t support the decisions you want to make, blow up the process.

We will continue to defend the role of independent science in our public policy-making process. But you have a role to play too. Learn more about how to inject this and other critical science policy topics into the 2020 elections by taking the Science Rising Challenge.