Special Topics in Environmental Management

Motivation, Legality of Memo to EPA Science Advisory Board Questioned by House Leader

Concerns about instructions in a draft memorandum from EPA Administrator Andrew Wheeler about which proposed documents the Agency’s Science Advisory Board (SAB) reviews were raised in a letter Rep. Eddie Bernice Johnson (TX-D) sent to Wheeler. According to Johnson, the draft memo directed that the chair of the SAB, “in consultation with EPA,” would determine whether there are scientific aspects of a proposal that merit the SAB’s review. Johnson states that she is aware of no provision in the SAB’s authorizing statutes that permits the EPA to submit proposed documents—e.g., criteria documents, standards, limitations, and regulations—to the SAB chair alone.

EPA sign

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“The proposed guidance seemingly runs counter to the provision in the [Environmental Research, Development, and Demonstration Authorization Act of 1978 (ERDDAA)], which established the SAB, and the federal Advisory Committee Act, which broadly requires balance, independence, and transparency among federal advisory committees such as the SAB,” writes Johnson.

MATS, WOTUS, and Vehicles

Johnson suggests it is no coincidence that the draft memo follows reports the SAB sent to Wheeler in October 2019, which found significant flaws in four proposed regulations issued by the EPA.

“I am particularly troubled by the timing of this draft memorandum as it appears to be a retaliatory reaction to recent draft SAB reports that are critical of several proposed rulemakings being promulgated by the Agency,” Johnson added.

The October reports from the SAB cited by Johnson found significant scientific deficiencies in EPA proposals affecting the Mercury Air Toxics Standards (MATS) for power plants; fuel efficiency standards for 2021–2026 passenger cars and light trucks; transparency in regulatory science; and the definition of waters of the United States (WOTUS).

Transparency Defeated

Johnson notes that the ERDDAA requires that the EPA administrator submit the proposed documents noted above to “the Board” rather than an individual designated by the EPA and also authorizes “the Board” to review them. But the approach in the draft memo defeats the ERDDAA’s tenet of transparency.

“I also note that appointing the SAB Chair as the sole decisionmaker on what EPA documents warrant scientific review would eliminate participation of independent science organizations, individual scientists and other outside stakeholders in the SAB prioritization process,” says Johnson.

Access to Documents

Johnson also says the draft memo would restrict the SAB’s review of Tier 1 and Tier 2 proposed rules until after such actions have been signed or published in the Federal Register.

“This process change would delay SAB’s engagement on any given rule by months or even years and virtually assure that formal SAB advice arrive very late in the final rule stage, or even after rules are finalized and cannot be changed,” writes Johnson.

Individual Members May Comment

The draft memo states that SAB members are free to submit comments to the rulemaking docket regarding any action the SAB chair determines is not entitled to a full review. Such submittals would be no different from comments sent in by the public.

“[S]uch individual commenters would apparently be deprived of the information and staff resources they need to make insightful recommendations about an action—resources not necessarily provided to the general public,” writes Johnson.

Johnson’s letter asks that Wheeler respond to a number of questions, including an explanation of the legal basis that allows the SAB chair to make decisions for the full SAB.

The letter requests answers to the questions by March 3, 2020.