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Courts lean against US EPA science advisers policy

Trial court vacates directive, appeals courts appear skeptical of legality

by Cheryl Hogue
April 22, 2020


Photo shows plaque bearing the name "Environmental Protection Agency" on the exterior of an EPA headquarters building in Washington, DC.
Credit: Shutterstock

Federal courts are converging against the US Environmental Protection Agency’s policy barring EPA grant recipients from serving as its science advisers.

The policy, which the Trump administration rolled out in 2017, is technically no longer in effect—a federal trial court in New York vacated it on April 15. That means the EPA can no longer rely on the policy to prohibit those who receive agency grants from membership on its science advisory boards, explains Vivian Wang, an attorney at the Natural Resources Defense Council. The NRDC is an environmental advocacy group that brought the case in New York.

But the EPA could appeal that ruling and ask that the policy—which has significantly boosted industry representation on advisory panels—be reinstated during further legal proceedings. Asked whether the EPA will appeal, an agency spokesperson responded, “EPA does not comment on pending litigation.”

In its April 15 ruling against the policy, the federal trial court in New York determined that the agency “failed to articulate any reason for changing its longstanding practice of permitting EPA grant recipients to serve on EPA advisory committees.” In addition, the agency provided no evidence that grant recipients that had served on advisory committees over several decades were biased, the court found.

Higher courts are also lining up against the policy. Although trial courts in the District of Columbia and Massachusetts had dismissed challenges to the policy, two federal appeals courts in the last month reinstated those suits. The plaintiffs are advocacy groups that claim the agency violated federal law by failing to explain why it was abruptly changing course. All of the cases hinge on a federal law that governs how the federal bureaucracy must operate—the Administrative Procedure Act.

The agency “failed to articulate any reason for changing its longstanding practice of permitting EPA grant recipients to serve on EPA advisory committees.
US District Court for the Southern District of New York, April 15 order vacating the policy

“The signs are pointing in the right direction,” Michael Halpern of the Union of Concerned Scientists (UCS) says of the three recent court rulings. UCS brought the case in Massachusetts.

The New York federal court’s order vacating the policy won’t force the agency to change the membership of its current advisory panels. “It simply means that the EPA may not categorically exclude EPA grant recipients from serving on advisory committees” and abide by the standards it historically used, the US District Court for the Southern District of New York said.

But this doesn’t mean the agency would have to stick to those standards forever, the US Court of Appeals for the District of Columbia Circuit said in its April 21 decision.

“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,” the DC Circuit court said in the case lodged by Physicians for Social Responsibility and other health groups.

The policy, the DC Circuit wrote, “nowhere confronts the possibility that excluding grant recipients—that is, individuals who EPA has independently deemed qualified enough to receive competitive funding—from advisory committees” could omit “the most qualified, knowledgeable, and experienced candidates” from panels.

In a March 23 ruling, the Boston–based US Court of Appeals for the First Circuit suggested another angle for consideration for the federal trial court in Massachusetts as it reevaluates the UCS case.

“The EPA has admittedly changed a long-standing practice. And it has done so in a manner that the complaint plausibly describes as altering the balance and the role of special interest influence on EPA advisory committees,” the First Circuit said.

“After the Trump administration’s daily assaults on the environment and common sense, it’s a relief to see the courts intervene, says Joe Árvai, a former member of the EPA Science advisory Board and a plaintiff in the DC case. “The critical next step is to begin the slow but essential process of restoring expertise and credibility at the EPA.”


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