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EPA asks court to throw out case against Pruitt’s science advisory rule

The Department of Justice filed a motion on Friday seeking to quash a challenge to Environmental Protection Agency (EPA) Administrator Scott Pruitt’s new rule barring scientists who have received agency grants from sitting on EPA scientific advisory panels.

By prohibiting scientists who have received EPA grants, Pruitt’s goal is to fill the advisory boards with industry-friendly members.

The Justice Department lawyers, working on behalf of the EPA, argued that “the power to appoint committee members is the administrator’s alone and is non-reviewable by the courts.”

Filed with the U.S. District Court for D.C., the lawyers are urging the court to throw out a case brought by several scientists and environmental groups who oppose Pruitt’s new rule.

The government lawyers maintain that it is Pruitt’s responsibility to ensure federal advisory committees are composed of experienced members who “reflect the diverse viewpoints of the communities most affected by the statutes and programs” the agency administers.

The motion refers to Pruitt’s directive as a “preference” for selecting committee members who do not receive EPA grant money. But after Pruitt issued the directive on October 31, 2017, at least six grant recipients who were members of the EPA Science Advisory Board were removed from the panel.

“EPA appointed new advisory committee members to replace members removed pursuant to the directive. Many of the replacement appointees work directly for industries regulated by EPA or receive  financial support from such industries,” Earthjustice wrote in a December 21, 2017 complaint filed on behalf of several medical and health groups.

After Pruitt changed the criteria for choosing advisory committee members, the Government Accountability Office (GAO) opened an investigation into the decision to ban scientists from the committee who have received EPA grants.

Sens. Tom Carper (D-DE) and Sheldon Whitehouse (D-RI) sent a letter to the GAO in February alerting the office that newly acquired internal EPA documents suggested that political appointees at the EPA under Pruitt disregarded the procedure for nominating people to serve on the boards. By ignoring protocol, the senators suggested the political appointees wanted to ensure more pro-industry members filled the ranks of the committees.

The staff office for the EPA’s Science Advisory Board, for example, is required to ensure that the board’s members are independent and generally balanced in viewpoints and expertise. The staff must comply with the Federal Advisory Committee Act and the Ethics in Government Act, which prohibit political interference in the selection of board members.

“It’s bad enough that Scott Pruitt is purging independent scientists from the EPA to advance the agenda of corporate polluters. Now he’s doubling down and trying to evade accountability,” Earthjustice attorney Neil Gormley, who wrote the complaint against the EPA, said Monday in an email to ThinkProgress.

In its motion to dismiss, the EPA also stated that the plaintiffs’ motion should be thrown out because the final composition of the various advisory committees “are as yet unknown” and “it is premature to determine whether the committees are fairly balanced or improperly influenced.”

The EPA manages 22 advisory committees that address a wide range of environmental and health issues. Of the 22 committees, eight are established by law: the Clean Air Scientific Advisory Committee; the Science Advisory Board; the Federal Insecticide, Fungicide, and Rodenticide Act Scientific Advisory Panel; the Hazardous Waste Electronic Manifest System Advisory Board; the Human Studies Review Board; the National Drinking Water Advisory Council; the National Environmental Education Advisory Council; and the Scientific Advisory Committee on Chemicals.

In his October 31 directive, Pruitt said he wanted to promote “integrity and confidence” in its advisory committees by ensuring members “avoid financial entanglements with EPA to the greatest extent possible.” Forcing committee members to choose between receipt of EPA grants and service on EPA advisory committee “will contribute to the independence of EPA advisory committees,” he said.

In its complaint, though, Earthjustice explained that the EPA has a consistent, decades-long practice of appointing EPA grantees to its federal advisory committees.

“EPA has never before viewed the receipt of EPA funds as disqualifying a person from service on federal advisory committees,” the complaint said. “EPA has consistently taken the position that the fact that a person receives an EPA grant does not indicate a lack of independence from or lead to improper influence by the Agency on the committee.”

When he issued the directive, Pruitt did not provide public notice of the rule change for the purpose of taking public comment, nor did he take public comment, according to Earthjustice’s complaint. The agency also failed to issue the directive jointly with Office of Government Ethics, publish the directive in the Federal Register, or codify the directive in the uniform federal ethics rules.

Consequently, Earthjustice said that Pruitt’s new policy is an “illegal attempt” to override federal ethics rules and is “arbitrarily biased” in favor of polluting industries.

In response to the EPA’s argument that the power to appoint committee members is the administrator’s alone, Gormley told ThinkProgress that “even if the administrator has discretion in deciding who to appoint, he still has to comply with the law.”

In January, the Union of Concerned Scientists filed a similar lawsuit against Pruitt’s directive. In the complaint, filed in the U.S. District Court for the District of Massachusetts, the Union of Concerned Scientists contended Pruitt did not explain why scientists and experts who receive similar funding from other sources — scientists affiliated with private industry or local governments — fall outside the scope of the purge.

By singling out academic members of the scientific community who are receiving EPA grants, Pruitt’s directive “lays bare its real function: to stack the deck against scientific integrity,” the lawsuit said. The EPA has yet to respond to the Union of Concerned Scientists lawsuit filed in Massachusetts federal court.

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