The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
One of Environmental Protection Agency Administrator Scott Pruitt's primary initiatives at the EPA was an attempt to reform the agency's science advisory committees in order to remove what he and others perceived as a pro-regulatory bias. Pruitt did not last particularly long at the EPA, and this initiative did not last too long either.
Earlier this week, in Physicians for Social Responsibility v. Wheeler, a unanimous panel of the U.S. Court of of Appeals for the the D.C. Circuit threw out Pruitt's October 2017 directive that barred scientists receiving EPA grants from serving on EPA scientific advisory committees, rejecting the EPA's claim that the directive was unreviewable and concluding the directive was arbitrary and capricious. Judge Tatel wrote for the court, joined by Judges Rogers and Ginsburg.
The central failing of the Pruitt directive, Tatel explained, was that the EPA failed to engage in reasoned decisionmaking insofar as the Agency failed to provide an adequate explanation for the dramatic change in policy concerning who could serve on its scientific advisory committees. For years, the EPA followed the guidance of the Office of Government Ethics, precluding scientists from serving on committees with a genuine conflict of interest, but not defining such conflicts so broadly as to exclude any scientist receiving EPA grants from all scientific advisory committees without regard for whether there was any relationship between the committee work and the subject of the grants. In abandoning this longstanding approach, and departing from the OGE's advice, Tatel reasoned, the EPA was obligated to explain the basis for the change and, in particular, acknowledge the nature of the change being made.
As Judge Tatel explained:
nothing prevents EPA from developing an appointment policy that excludes individuals it previously allowed to serve. To do so, however, EPA must explain the basis for its decision. Because the Directive contains no discussion of OGE's or EPA's prior conclusion at all, the Directive "cross[ed] the line from the tolerably terse to the intolerably mute." Greater Boston Television Corp., 444 F.2d
As was true with many EPA initiatives undertaken during Pruitt's tenure, the agency simply failed to provide the degree of reasoned explanation that courts have come to expect. In other words, this was yet another unforced error.