Scientists Prevail in Lawsuit Against EPA Science Advice Ban

June 26, 2020 | 2:51 pm
Michael Halpern
Former Contributor

In a win for independent science, the EPA said yesterday that it will rescind a policy banning many of the nation’s top environmental scientists from serving on the agency’s science advisory committees. The agency was under court order to remove it.

The directive was designed to justify kicking the top independent experts off EPA’s advisory committees so they are more likely to get the answers they want. The EPA selectively enforced the directive and ignored other protocols on issues like air pollution where agency leaders knew the science did not support the policies they wanted to put forward.

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 directive. In March, a federal court of appeals found that the EPA has a responsibility to ensure that committees are protected from special interest influence. The previous month, a different federal court of appeals said the EPA had failed to provide sufficient justification for the scientist ban.

Yet again, the Trump administration failed to provide a justification for a policy they issued. The Supreme Court most recently recognized this in striking down the administration’s DACA policy. The administration’s record in court is remarkably lousy because they repeatedly fail to show their work.

Science advice is treated by EPA’s current political leaders not as an input into policymaking but as a problem to be managed. Since we filed our lawsuit, the EPA has further politicized its science advice processes, completely eliminating some advisory panelsstacking existing committees and boards with industry representatives, and sidelining the agency’s Science Advisory Board.

Unfortunately, while it was in place, the directive had substantive consequences on EPA’s ability to protect public health using the best available science. The EPA has proposed particulate pollution standards that disregard legitimate science advice, instead relying on the inability of the Clean Air Scientific Advisory Committee to reach consensus on what a protective standard should be. University of Washington air pollution expert Dr. Lianne Sheppard, a co-plaintiff in the UCS case, was forced off that committee because of this policy.

EPA staff go through applications and make recommendations on who to appoint to its science advisory committees, and with the directive defeated, it is more likely that moving forward EPA will have more qualified candidates to choose from. EPA Administrator Wheeler should heed their advice. While he still has the authority to appoint who he wants, it will now be more difficult for him to ignore independent experts and stack advisory committees with industry representation.

The illegitimate science advice ban now provides Administrator Wheeler no shield. With the policy in place, the top experts couldn’t even apply, so he wasn’t be put in the awkward position of rejecting them. The benefit of independent expertise on EPA’s scientific advisory panels is unquestionable. Now, we’ll be able to better measure if or when the EPA administrator wakes up to that fact.