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The modern administrative state was built on the promise of expertise. As James Landis in his New Deal-era defense of the bureaucracy, expert agencies are needed to effectively oversee the behavior of sophisticated industry actors. Consistent with Landis鈥檚 vision, government agencies today are populated by subject matter experts. Thus, the Environmental Protection Agency (EPA) employs biologists and chemists while the Nuclear Regulatory Commission employs physicists and reactor systems engineers. Increasingly, agencies have also sought the advice of outside experts. These outside experts form advisory committees, task forces, work groups, and boards that review agencies鈥� internal decisions and provide recommendations and advice.
The federal government now makes use of . Sheila Jasanoff has called them a 鈥溾�� of government. In the 1970s, congressional concern about the proliferation of advisory committees produced the (FACA). FACA imposes reporting and transparency requirements on federal advisory committees. In addition, the Act that advisory committees should be 鈥渇airly balanced in terms of the points of view represented and the functions to be performed.鈥�
On Halloween, EPA Administrator Scott Pruitt issued a entitled 鈥淪trengthening and Improving Membership on EPA Federal Advisory Committees.鈥� The directive states that no member of an EPA advisory committee shall 鈥渂e currently in receipt of EPA grants鈥� or be 鈥渋n a position that otherwise would reap substantial direct benefit from an EPA grant.鈥� A accompanying the directive explained that direct receipt of EPA grants 鈥渃an create the appearance or reality of potential interference鈥� with members鈥� abilities to 鈥渋ndependently and objectively鈥� serve.
That justification is superficially appealing. But the directive鈥檚 outward concern with impartiality masks an effort to rebalance advisory committee membership to favor industry representatives over academics. By preventing EPA grantees from serving on advisory committees, the agency is likely disqualifying some of the country鈥檚 ablest scientists. Those dismissed from the EPA鈥檚 advisory commissions in the wake of the directive include researchers from . In contrast to academics, industry scientists need not seek EPA grants because their research is funded by their employers. They are thus unaffected by the directive. Industry membership on advisory boards raises of its own. But Administrator Pruitt鈥檚 directive ignores this source of potential bias completely.
Moreover, the insinuation that receiving a grant from the EPA renders an advisory board member impartial is misleading. The EPA that in the past three years, members of its Science Advisory Board, Clean Air Scientific Advisory Committee, and Board of Scientific Counselors received a combined total of more than $77 million in direct EPA grant funding. But that figure, by itself, proves nothing. The EPA already employs a . one former member of EPA鈥檚 Scientific Advisory Board, advisory commission members are given a conflict of interest form to fill out for each separate issue discussed. If a conflict is identified, the member is immediately recused.
Disallowing advisory committee service by agency grant recipients will not necessarily lead to ideological 鈥渟tacking鈥� of committees. But the directive鈥檚 application has already resulted in on EPA advisory committees. There have also been committee leadership changes. Dr. Peter Thorne, whose identifies him as a co-investigator on an EPA-funded study, was recently replaced as chair of the EPA鈥檚 Science Advisory Board by , lead toxicologist for the Texas Commission on Environmental Quality. Dr. Honeycutt has broken with the scientific consensus by . One of his ? Most people spend 90% of their time inside, where smog is less likely to affect them.
Administrator Pruitt鈥檚 directive is of concern to those who value advisory committees鈥� scientific integrity (and some lawmakers have their displeasure). But is it illegal? Any legal challenge must overcome several hurdles. The first, and most easily surmounted, is that the APA judicial review to 鈥渇inal agency action.鈥� The EPA鈥檚 directive is likely final under , which requires that the action 鈥渕ark the 鈥榗onsummation鈥� of the agency鈥檚 decisionmaking process鈥� and be one 鈥渇rom which 鈥榣egal consequences will flow.鈥欌�� As the D.C. Circuit has , even informal guidance like this directive can be deemed final when it reflects a settled agency position. This directive is binding on its face and has immediate legal consequences for advisory committee members. While Administrator Pruitt was careful to note that he was 鈥渞eserv[ing] the right to exercise my discretion to depart from the procedures set forth in this directive,鈥� that statement is probably not enough to deprive the directive of finality.
The second hurdle is Article III standing. Under the governing , plaintiffs must demonstrate to a court鈥檚 satisfaction that the directive has caused them a cognizable injury. They must also show that a verdict in their favor will redress that injury, at least in part. The most obvious candidates to challenge the directive are advisory board members who were dismissed due to their EPA grant funding or EPA grant recipients who were potential appointees prior to the directive鈥檚 issuance. As , 鈥淪tanding predicated upon denial of a fair opportunity to compete for a position or contract is well established.鈥�. Alternatively, environmental groups like the NRDC and the Sierra Club may be able to invoke the ideas of and to challenge the directive on their members鈥� behalf. The Fifth Circuit has that entities with an interest in the accuracy of particular agency decisions have standing to challenge advisory committee irregularities under FACA, although in that case the challenge came from regulated industry rather than from regulatory beneficiaries.
On the merits, one possible challenge to the directive is that it violates FACA鈥檚 requirement that advisory committees be 鈥渇airly balanced.鈥� As one commentator has , the courts are divided on whether this requirement is justiciable. The Ninth Circuit that FACA does not 鈥渁rticulate what perspectives must be considered when determining if the advisory committee is fairly balanced,鈥� and thus provides no meaningful standard for judicial review. However, the , , and Fifth Circuit have reached the opposite conclusion. In a case called , the Fifth Circuit not only found the 鈥渇airly balanced鈥� requirement justiciable, but it also found that appointing agency grantees to serve on advisory boards at the Department of Health and Human Services (HHS) was not a violation of FACA. 鈥淢oreover,鈥� the court concluded, 鈥渋f HHS were required to exclude from peer review committees all scientists who somehow had been affiliated with the department, it would have to eliminate many of those most qualified to give advice.鈥�
Per Cargill, therefore, status as a grant recipient is not disqualifying under FACA. But arguing that the EPA is not permitted to disqualify grant recipients is much harder. FACA鈥檚 鈥渇airly balanced鈥� edict is worded broadly enough to give agencies significant latitude in selecting advisory commission members. A facial challenge to EPA鈥檚 directive would likely fail, since there undoubtedly exist qualified members of academia not in receipt of EPA grants. More likely to succeed are as-applied challenges to the makeup of specific EPA advisory committees on the basis of industry over-representation. There is some evidence, however, that courts are inclined to to an agency鈥檚 selection of advisory committee members.
Plaintiffs might also challenge the directive as arbitrary and capricious under the Administrative Procedure Act (APA) or as a violation of FACA. Courts assessing agency action under the APA鈥檚 arbitrary and capricious standard in part, whether an agency has articulated a rational connection between the facts found and the choice made. There is a powerful argument here that EPA鈥檚 focus on one version of independence (from the EPA itself) while ignoring another version of independence (from regulated industry) was arbitrary. It could also be argued that the equation of grant receipt with bias is itself an arbitrary conclusion, especially in light of the Fifth Circuit鈥檚 Cargill opinion.
Because Administrator Pruitt鈥檚 directive was announced on Halloween, it seems fitting to invoke the of that holiday, on which Celtic druids would make predictions about the future. My gloomy prediction is that this directive is not the last blow to agency expertise and unbiased science that we will see from the Pruitt EPA. Advocates should pursue judicial solutions where possible, but the surest remedy for such violations is political. Scott Pruitt is and should be replaced at the earliest possible opportunity.
is a Professor at CU Law and a member of the GWC Board.