Union of Concerned Scientists v. Pruitt: Can EPA Purge Its Academic Science Advisors?

• Date: 01 July 2018

7-2018 NEWS & ANALYSIS 48 ELR 10567

In January 2018, the Union of Concerned Scientists and

Dr. Elizabeth Anne Sheppard, a University of Washing-

ton science professor who specializes in air pollution,

led a strongly worded complaint against Adm inistra-

tor Scott Pruitt and the U.S. Environmental Protection

Ag ency (E PA). 1 ey led in response to an Agency direc-

tive that Pruitt issued on October 31, 2017.2 e directive

consists of only one page, cites no specic law, and lays out

four brief pri nciples and procedures intended to enha nce

the “independence, diversity, and breadth of participa-

tion on EPA federal advisory committees.”3 One of these

principles— that of “St rengthen[ing ] Member Indepen-

dence”—contains a nove l conict-of-interest policy.4 is

policy entails “a requirement that no member of an EPA

federal advisory committee be currently in receipt of EPA

grants, either as principal investigator or co-investig ator, or

in a position that otherwise would reap substantial direct

benet from an EPA grant.”5 e directive excludes EPA

grant recipients aliated with state, triba l, and local gov-

ernment agencie s.6

A ve-page memorandum, addressed to various EPA

sta members, accompanied the di rective.7 e memo fur-

ther develops a number of points mentioned in the cur-

sory directive, including the import ance of cooperative

federalism in EPA administration, fair balancing of fed-

eral advisory committees, and increasing the participation

of state, local, and tribal agencies, a s well as geographic

1. See Complaint for Declaratory and Injunctive Relief, Union of Concerned

Scientists v. Pruitt, No. 1:18-CV-10129 (D. Mass. led Jan. 23, 2018).

2. Directive From E. Scott Pruitt, Administrator, U.S. EPA, Strengthen-

ing and Improving Membership on EPA Federal Advisory Councils (Oct.

31, 2017) [hereinafter Directive], https://www.epa.gov/sites/production/

les/2017-10/documents/nal_draft_fac_directive-10.31.2017.pdf.

3. Id.

4. See id.

5. Id.

6. Id.

7. Memorandum From E. Scott Pruitt, Administrator, U.S. EPA, to Assistant

Administrators, Regional Administrators, and Oce of General Counsel,

U.S. EPA (Oct. 31, 2017) (Strengthening and Improving Membership on

EPA Federal Advisory Councils) [hereinafter Memo], https://www.epa.gov/

sites/production/les/2017-10/documents/nal_draft_fac_memo-10.30.

2017.pdf.

diversity and the promotion of “fresh perspectives.”8 e

memo cites a bit of law, most notably provisions of the U.S.

Code and Code of Federal Regulations pertaining to bal-

anced membership of advisory committees.9 e memo,

however, does not cite any law in laying out its “Strengthen

Member Independence” section, which sets out the con-

ict polic y.10 Overall, the memo does not develop any sub-

stantive legal basis for the policy, instead citing snippets

of code and emphasizing words such as “geographic” and

“diverse opinions.”11

e petitioners in Union of Concerned Scientists v.

Pruitt claim Pruitt’s conict-of-interest policy violates the

Administrative Procedure Act (APA)12 or Federal Advisory

Committee Act (FACA)13 in four ways: it allegedly is arbi-

trary and capricious, in violation of 5 U.S.C. §706(2)(A);

exceed s statutor y jurisdiction, aut hority, or limitations, i n

violation of 5 U.S.C. §706(2)(C); would create unbalanced

advisory committees, in violation of 5 U.S.C. Appendix

2 §5(b)(2); and would be inappropriately inuenced by

Administrator Pruitt or special interests, in violation of 5

U.S.C. Appendix 2 §5(b)(3).14 ey seek declaratory relief

with regard to the conict-of-interest policy and injunctive

relief with regard to the actua l removal from advisory com-

mittees of recipients of EPA grants.15

is Comment analyzes Union of Concerned Scientists

by providing relevant background and then exa mining

the four specic claims put forth in t he suit. Ultimately,

based upon this analysis, it concludes that the petitioners’

claims have merit. In fact, I argue that Pruitt’s conict-

of-interest policy is arbitrary and capricious because it is

utterly devoid of sucient logic. erefore, the conict-of-

8. Id.

9. See id.

10. Id. at 3.

11. Id. at 4.

12. 5 U.S.C. §§500-559.

13. 5 U.S.C. app. 2 §§1-16.

14. Complaint for Declaratory and Injunctive Relief at 27-32, Union of Con-

cerned Scientists v. Pruitt, No. 1:18-CV-10129 (D. Mass. led Jan. 23,

2018).

15. Id. at 32-33.

Union of Concerned Scientists

v. Pruitt: Can EPA Purge Its

Academic Science Advisors?

by Andrew Taylor

Andrew Taylor is a rising 3L at Tulane Law School and incoming Editor-in-Chief of the Tulane Environmental Law Journal.

Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.