Environmental Protection Agency

D.C. Circuit Rejects Trump Reforms of EPA Science Advisory Committees

Another big legal victory for environmental groups this week.

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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
at 852

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.

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  1. To be fair, it’s not like he could have simply written “I don’t want the EPA to be advised by actual scientists”.

    1. I suppose he could have, but that would hardly reflect the rule they actually put into place, which merely required the EPA to not be advised by actual scientists receiving EPA grants. Presumably there are a lot of actual scientists who don’t get such grants.

      1. Receiving grants is one measure–but, by not means, the sole measure–of merit and achievement in one’s field. If Pruitt wants to purge qualified people from serving, his attempt was a good start at said purge.

        If I were somehow able to institute a rule that, “No one who was Order of the Coif in law school may serve as clerk for any state or federal judge.”, I think most reasonable people would question my motives, and would think that I am trying to reduce the quality of legal opinions, by reducing the quality of clerks that assist judges and justices in their research and writing.

        1. My understanding is that he wanted qualified people, but he wanted qualified private sector people, not people who made their living off government grants. There’s no particular reason to believe that private sector scientists are less competent than scientists funded by government grants, but they may have different biases in regards to government interventions.

          1. But they certainly have their own biases. No?

            1. That’s why I said different biases. Everybody’s got biases, it comes with being human. Pruitt wanted different biases for a change.

              1. 90% of testimony before Congress is government employees — government lobbying for its own expansion, not general citizenry pleading for it.

          2. Brett, I took it as wanting a “real world” perspective instead of the “sue & settle” perspective.

            1. Maybe the kind of “real world” perspective that cures Covid-19 by injecting disinfectant into the skin? Nah, just kidding. This administration merely wants to disqualify anyone except foxes for the job of hen house guard.

              After all, foxes have a decidedly “real world” perspective…..

              1. Those who focus myopically on the ‘ingest or inject disinfectant’ point are being unfair — he also mentioned administering light internally . . . swallowing lightbulbs, maybe?

                The dullards who defend this guy deserve all the scorn and ridicule their betters can provide.

                1. A rare moment of agreement: Trump is under a lot of stress right now, but that’s no excuse to be blue skying in public.

                  1. Brett : “Trump is under a lot of stress right now….”

                    The fact he’s a moronic imbecile is probably also a contributing factor.

              2. This administration merely wants to disqualify anyone except foxes for the job of hen house guard.

                A retired poacher makes the best game warden — he knows all the tricks and he’s heard all the stories. And who did FDR appoint to oversee the stock market — Joe Kennedy, who’d been the biggest crook on Wall Street.

                A well-fed foc makes a damn good hen house guard….

          3. “My understanding is that he wanted qualified people,”

            Seeking a point man for the epidemic, he scoured the nation’s population of accomplished scientists, infectious disease experts, talented and experienced researchers, and skilled public health administrators . . . and hired the 30-something proprietor of an outfit called Dallas Labradoodles.

            In addition to being a dog breeder, this guy was a downscale political hack.

            That is what substitutes for “qualified” in the Trump administration.

            Your asserted understanding is lame, your dumbassery comprehensive.

        2. There aren’t qualified left-leaning scientists in academia?

        3. The issue is, it can be viewed as a form of regulatory capture. The Scientists getting the EPA grants advise on actions that will require more research and funds from the scientists getting EPA grants…

          1. That’s not how regulatory capture works. An agency wanting to do more research is not really some kind of pathological market distorting behavior.

            1. Not necessarily some kind of pathological market distorting behavior. It certainly can be.

              1. Grants aren’t contracts. There is no cost-plus profit – you need to account for everything you spend.

                Absent a completely different research enterprise, there is no market to distort.

                1. Of course there is a market to distort. Grants may need to be accounted for, but they fund jobs, tenure, power, prestige and more. That’s why they are so heavily sought after.

                  You bring in more and bigger grants, you get a bigger group with newer, fancier equipment, you get more bonus pay from the university, you get more renown, you get more consulting dollars on the side…

                  And if you’re the one advising whether or not there should be more of these grants, well….

                  1. But if that’s the market you’re talking about, i.e. one big undifferentiated mass of grantmaking bux, where can that be distorted or captured?

                    In other words, where is the impact of the nonstandard agency capture you describe? Agencies like doing research and like growing their budget already, I don’t see how this is going to change based on receiving the advice of scientists who, as is well known, like grants.

                    1. Well, you’ve basically said part of the problem.

                      “Agencies like doing research and growing their budget”.
                      Then the advisory committees are made up of people who “like doing research, and growing their budget”.

                      Agency scratches the back of the advisory committee. Advisory committee scratches the back of the agency…. Agency says “This advisory committee of independent scientists say that we need more money for research.” Independent scientists on the committee then get more money for research….

                    2. Liking grants is not a conflict of interest, FFS.

                      Scientist advisors are not going to add to the problem of agencies wanting to grow.

                      If you’re going to call agencies believing in their mission and wanting to grow as ‘agency capture’ you’re robbing the word of all of it’s meaning.

                      We have plenty of ways to keep agency budgets in line, from Congress to OMB. We don’t need to start putting people who don’t like research in charge of an agency’s research arm.

                    3. Scientist advisors are not going to add to the problem of agencies wanting to grow.

                      So you don’t think people from industry on advisory committees might give different advice with respect to the agency’s agenda than people getting grants from that agency?

                    4. (To be clear, I am not addressing the wisdom of this policy. Just the notion that there’s no possibility of bias.)

      2. Euh, Brett, this is research into environmental issues, not pharma. There’s not a lot of private sector profit to be made here. It’s all public sector and private sector non-profits doing research based on money “donated” by other public sector and private sector entities and individuals. EPA grants will be a big part of that, and knocking out anyone receiving EPA grants (or, presumably, applying for them) will knock out the vast majority of top scientists.

        1. They don’t need no steenking science. The Trump Administration is stable geniuses – all the way down.

        2. The issue there, is the pseudo regulatory capture going on and conflict of interest. The scientists doing the advising are getting the EPA grants for the actions that they are advising on.

          If you’re a scientists whose lab depends on EPA grants, and you’re advising the EPA, and the question comes up “does there need to be more funding for this sort of research that you happen to do”, as a scientist whose lab depends on that funding, you’ll almost certainly say yes.

          1. That’s not the sort of questions advisory committees are asked. They’re more about which grants to fund and how to word solicitations.

            Scientists wanting more grants is the water in which all research agencies swim; it’s not going to become wetter by giving the scientists a chance to decide how the pie is distributed.

            1. And of course, those advisory committees decide to fund the grants that go towards their specialties, and to word the solicitations in such a way that they are the ones that are best suited towards the solicitation.

              1. Except, as noted in the OP, they are already conflicted out of giving advice regarding their area of research.

                1. Not really. They give plenty of advice in their area of research. That’s the point, isn’t it?

                  1. “EPA has long allowed individual recipients of EPA grants to serve on its scientific advisory committees, provided they do not address matters related to their individual grants.”

                    You appear to be arguing there’s a conflict of interest in a physicist liking physics research. That’s not how conflict of interest works. It’s not how agency capture works either.

                    It’s normal. You’re describing nothing abnormal. You’re just attacking…research. Unbelievable.

                    Advocating for people who don’t like research to be the only people to advocate on research policy, in order to keep research from getting to big is a very ignorant view to take about research and incentives.

          2. According to the decision “EPA has long allowed individual recipients of EPA grants to serve on its scientific advisory committees, provided they do not address matters related to their individual grants.”

        3. re: “… will knock out the vast majority of top scientists.”

          While your hypothesis is theoretically plausible, I see no actual evidence for that claim. On the contrary, I see plenty of top scientists in the field who are based out of universities (with diverse funding mechanisms which sometimes do but just as often do not include EPA grants). Do you have any actual evidence to show what percent of “top scientists” (however you choose to define that term) receive EPA grants?

          Note, by that way, that Pruitt’s preferred rule was not a lifetime ban. If I remember correctly, it only blocked current recipients of the grants.

          1. Grants are generally given to universities.

            1. ehh…not really.

              1. Certainly, in the case of members of the science advisory committee, it will be.

                If you want to get pedantic about infrastructure projects via the army corp or whatnot, then have away with it.

                1. So, this is a bit of a technicality in terms of grants and grant funding from the federal government (and other sources).

                  When a primary investigator (PI) writes a grant and gets it funded, technically speaking, the grant goes to the University, not to the PI personally. The University then puts the money from the grant into an unique account from which the PI can draw for their project and lab needs. The University, broadly speaking, has little practical authority on where the grant money is spent (besides overhead, which is a different topic)…The spending of the grant money is largely at the discretion of the PI. In essence it is the PI’s money to spend…not personally, but professionally.

                  1. In my shop we call them Principle Investigators, but terminology will no doubt shift some.

                    Right – the university gets the indirect costs, and the PI spends the direct cost (depending on each institution’s grants office). But read Rossami’s comment – he doesn’t think that researchers at universities are operating under EPA grants!

                    1. I hope you call them Principal Investigators, unless you’re a philosophy department.

            2. I already said that some universities get some grants – and that they often get funding through other sources. The only way your comment makes sense is if you believe that any grant to Harvard (for example) would disqualify all researchers at Harvard. That’s not the way the rules work. Even though the grant is technically paid to the university, it is tagged for the individual researcher – and only that researcher would have been disqualified based on that grant.

              1. I really do believe this policy would disqualify all professors doing active research in the environmental arena in universities.

                Professors doing environmental research at universities are almost all going to be working off of grants. That’s how research is done at universities – they don’t do research just sua sponte; their expenses go elsewhere.
                Absent the occasional private grantmaking foundation, at universities it’s all governmental.

                1. But, they can get grants from many different areas. The EPA, the NSF, State funding agencies, the NIH, the EPA, private funding agencies, the DOD, etc.

                  Looking at the numbers, it was amazing how much EPA money some of the board members were getting. Just 7 of them were getting over a hundred million in EPA grants. The EPA doesn’t give out that much in grants…

                  1. They can, but we do a pretty good job of not being overly redundant amongst our mission-based researching agencies. If it’s environmental research, the lion’s share is going to be EPA. Especially if you’re top in your field.

                    There is some problems with a too-small grant engagement set. That’s a separate issue from whether these folks deserve the grants they are getting. I’d wager that they do some good stuff; I don’t know the EPA’s specific protocols, but conflict of interest policies are, again, a separate issue.

  2. 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.

    Someone in the Trump Administration made a decision without a good reason? Say it ain’t so.

    1. LOL….Now that was pretty funny.

  3. Jonathan,

    Are you persuaded by the Court’s analysis of reviewability?

    1. Not sure.

    2. So the default for government action is they don’t have to explain it, and post hoc rationalizations are generally enough. APA makes that different for rule-making. Does that part of the APA really apply to these kind of internal personnel decisions?

  4. Would 1 paragraph stating that it was changing existing policy to ensure there is no appearance of a conflict of interest for members of advisory panels?

    1. My apologies.
      How many words are required? What is the word count on justifying a change in policy? Of course, we assume the original policy was well documented.

  5. 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.

    Perhaps the Trump administration should/wanted to tell the courts to shove it, and that it shouldn’t have to provide an explanation for such an obvious rule.

    It will be interesting to see whether this goes any higher.

    1. It also will be interesting if Trump’s response is to just cut the research budget.

      1. Luckily, not Trump’s decision to make.

  6. The rationale is by no means obvious. Regarding people who work for non-profits dependent on grants as biased, while regarding the people who work for the very industries proposed regulations are affecting as unbiased, turns ordinary and commonly understood concepts of bias on their head.

    1. You are reading too much into the claims. The EPA rule was not so idealistic as to claim that non-grant-recipients are magically un-biased. The goal was merely to ensure that, as Brett said above at 10pm, the decisions were informed by people with different biases. Presumably, this was intended to balance out the biases of the inside EPA staff.

  7. This is just another example of the Trump attitude that he’s a King and with a wave of his pen, all must kiss his ring.

    All the law people on this blog must agree with me that procedure is just as important as result.

    1. As opposed to Obama?

      1. As opposed to judges; Bang of the gavel. Law of the land. Kinda cool.

      2. “As opposed to Obama?”

        It’s pretty much an involuntary reflex at this point, isn’t it?

  8. the D.C. Circuit threw out Pruitt’s October 2017 directive that barred scientists receiving EPA grants from serving on EPA scientific advisory committees

    How dare the administration try to prevent conflicts of interest!

    Not only are self-serving government actors acceptable, they’re legally required to continue to fleece the taxpayer.

    This is called “science.”

    1. There is no conflict of interest. Read the OP. If there is, they are barred from serving.

      1. There is a blatant conflict of interest.

        A scientist deciding a grant knows there is a chance the recipient may be hearing his grant next week. There is a strong implied agreement in the community of “scientists” to continue to favorably award grants and (more importantly) exclude undesirables,

        Even my 9 year old kid thinks this is ridiculous.

        1. Congrats on proving peer review is illegal.

          And your scare quotes around scientists is some impressively rank anti-intellectualism.

  9. “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.”

    There’s great humor in that, but it’s of the ineffable sort. Pruitt’s grifting was not terribly subtle, though.

  10. TLDR of the courts opinion: Orange Man Bad

  11. I don’t understand the entire basis of this decision. What’s wrong with simply saying: “There’s a new administration with new policies. That’s what elections are for. The voters rejected the old administration and its policies, and elected us specifically to implement a different philosophy, which this new policy reflects.”?

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