EPA, Pruitt may face lawsuits over advisory board changes

Environmental Protection Agency (EPA) Administrator Scott Pruitt may face legal challenges over his decision to block grant recipients from serving on advisory committees.

Environmentalists, Democrats and scientific societies have slammed Pruitt over the new policy, saying it unnecessarily blocks the best experts in their fields from giving the agency advice, while allowing industry officials to continue to have influence through the panels.

Legal experts say the dispute is certain to end up in federal court, where the EPA could face an uphill battle to prove that blocking certain scientists from its boards serves legitimate government interests.

{mosads}Michael Burger, executive director of Columbia Law School’s Sabin Center for Climate Change Law, allowed that it was possible a specific scientist might have a specific conflict on a specific policy because of federal funding.

But he said the broad policy outlined by Pruitt made little sense.

“The idea that just holding a grant at all from EPA disqualifies you in all instances from working on the committees just does not make sense, and has no real basis in conflict-of interest precedent,” he said.

Sidney Shapiro, a Wake Forest School of Law professor and Center for Progressive Reform scholar, said the fact that Pruitt would allow industry scientists to continue serving on advisory boards is a major problem.

“He didn’t get rid of people from industry who have the same potential conflicts. So unless you justify that adequately, that only adds to the argument that it’s arbitrary and capricious,” Shapiro said.

The policy, rolled out Oct. 31 at a major EPA event, comes in response to complaints lodged for years by Republicans and industry players. They say previous administrations stacked advisory committees with academics who rely on EPA grants, and therefore favor policies that would get them more grants.

“We want to ensure that there’s integrity in the process, and that the scientists who are advising us are doing so with not any type of appearance of conflict. And when you receive that much money … there’s a question that arises about independence,” Pruitt said at the time.

The EPA has said that members of the three most high-profile advisory committees — the Science Advisory Board, the Clean Air Scientific Advisory Committee and the Board of Scientific Counselors — had received $77 million in grants in the last three years.

The EPA did not respond to requests for comments on the legality of the new policy.

The Federal Advisory Committee Act gives agencies wide discretion to pick whom they want to be their advisers. It requires that the advisers avoid specific conflicts of interest and the boards must be balanced and transparent, but prescribes few specific requirements beyond that.

Steve Milloy, a lawyer who is an outspoken skeptic of past scientific conclusions by the EPA on matters like climate change and air pollution, said he’s confident the new standards can withstand legal scrutiny.

“I think that he’s on firm ground,” Milloy said of Pruitt. “Administrators have discretion to construct their panels, and the panels have to be independent and unbiased.” 

Milloy had long pushed to kick EPA grantees off boards. He worked with the conservative Energy and Environmental Legal Institute last year to sue the EPA, arguing that grantees were too conflicted to legally be allowed to serve.

The group dropped the lawsuit due to fears that it did not have the standing to sue, Milloy said. Additionally, a 1999 decision by the Court of Appeals for the 5th Circuit found that receiving an agency grant, by itself, does not disqualify advisory board members.

No current or former advisory committee member or environmental group has announced their intent to sue over Pruitt’s new standards.

But six House Democrats representing various committees warned Pruitt in a Nov. 3 letter to drop the policy, saying it “appears to potentially violate statutory requirements for agency advisory committees.”

Robert Johnston, a professor of environmental economics at Clark University and former Scientific Advisory Board member, said he has no plans to challenge the new policy, but did challenge Pruitt’s perceptions of the conflicts of interest at hand.

Johnston served on the board for about five years up until last week, when an EPA representative told him he was booted off unless he gave up his ongoing grant to study economic benefits of water quality.

“We filled out, each time, for each separate issue we discussed, a form which ensured that we had no conflict of interest. And so if that issue had anything to do with a grant we had or might apply for, or any other conflict of interest, we were immediately recused, and had to bow out of that issue,” Johnston said.

“So the idea that simply receiving a grant leads to conflict of interest, I just don’t see any support for that argument whatsoever.”