EPA Administrator Scott Pruitt’s directive establishing a policy to purge Agency science advisory committees of members who are receiving EPA monetary grants has spurred a strong reaction from environmental and public health groups. In the latest development, several groups have sued Pruitt for allegedly violating provisions in federal statutes that direct formation of the committees and establish criteria for the selection of members and also for not consulting with the federal Office of Government Ethics (OGE). The suit also asserts that Pruitt’s directive departs without an explanation from long-standing Agency policy and, furthermore, that Pruitt is replacing ejected science advisors with individuals who have connections to regulated industries. Several individuals removed from EPA committees because they have Agency grants joined in the suit as injured parties.
Appearance of interference
Pruitt’s directive, Strengthening and Improving Membership on EPA Federal Advisory Committees, and an accompanying explanatory memo (both available here) essentially provide members of EPA science committees with a choice—either they can continue serving on the committees or they can keep their EPA grants, but not both.
“Non-governmental and non-tribal members in direct receipt of EPA grants while serving on an EPA [Federal Advisory Committee or FAC] can create the appearance or reality of potential interference with their ability to independently and objectively serve as a FAC member,” Pruitt writes in his memo. “FAC members should be motivated by service and committed to providing informed and independent expertise and judgment.”
In their complaint to the U.S. District Court for the District of Columbia, the plaintiffs state that the directive is unlawful, arbitrary, capricious, and in violation of uniform federal ethics requirements issued by the OGE pursuant to the Conflicts of Interest Statute and presidential authority delegated to the OGE by Executive Order. The OGE has established a comprehensive and uniform scheme for addressing potential conflicts of interest that may arise where an executive-branch employee—including a special government employee serving on a FAC—participates in a matter in which he or she has a financial interest.
Furthermore, under OGE regulations, an agency that wishes to supplement the uniform federal ethics rules must “prepare and submit to the OGE, for its concurrence and joint issuance, any agency regulations that supplement the regulations contained in [5 CFR §2635.105(a)].” Only “[a]fter concurrence and co-signature by the OGE,” may the agency submit its supplemental regulations for publication and codification in the Code of Federal Regulations [CFR]. Such supplemental agency regulations “are effective only after concurrence and co-signature by the OGE and publication in the Federal Register [FR].”
But, the complaint states, Pruitt did not promulgate the directive jointly with the OGE, publish the directive in the FR, or codify the directive as an addendum to the uniform federal ethics rules in the CFR. Neither did the director of the OGE concur in or cosign the directive.
“For decades, EPA has had an unbroken historical practice of not treating the receipt of EPA funds as disqualifying a person from serving on a federal advisory committee,” the plaintiffs also contend. “EPA has long and consistently taken the position that the fact that a person receives an EPA grant does not indicate a lack of independence or render the person subject to improper influence…. [A person] is precluded from participating only in those matters that directly affect his or her employer in a special and distinct way.”
The directive marks a sharp departure from this past practice, the complaint continues.
“[The directive] deems receipt of EPA grants as cause to disqualify prospective members from serving on EPA advisory committees if they are the principal investigator or co-investigator or reap substantial direct benefits from an EPA grant,” the groups state. “EPA has a long-standing practice of taking the opposite position. In adopting the Directive, EPA did not acknowledge that its previous, consistent position conflicts with the Directive, acknowledge that it is changing position, or explain why it is doing so. EPA has not offered, and cannot offer, a rational explanation for reversing its prior practice.”
The complaint also points out that “many of the replacement appointees work directly for industries regulated by EPA or receive financial support from such industries.” Several examples are given, including one individual who is an executive with Total, one of the world’s largest oil companies; an individual who is an executive with an electric utility that operates coal- and gas-fired power plants; and the senior director of the American Chemistry Council.
These appointments “leave EPA advisory committees at greater risk of capture by special interest groups,” states the complaint, which asks the court to vacate Pruitt’s directive.