EPA's Limits on Advisory Committee Participation Are Subject to Judicial Review

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Foley Hoag LLP - Environmental Law

On Monday, the 1st Circuit Court of Appeals held that EPA’s directive forbidding those who receive EPA grants from serving on EPA advisory committees is subject to judicial review.  It’s an important issue, because the advisory boards are one of the few checks on EPA’s efforts to undermine of the use of science in its rulemaking.

EPA argued that it retains discretion over the composition of its advisory committees and that plaintiffs’ claims were not justiciable.  The Court disagreed.

First, the Court noted that the Federal Advisory Committee Act was enacted in order to avoid undue influence by the regulated community on federal advisory committees, which is precisely the concern expressed by the plaintiffs here.  The statute provides guidelines “to assure that the [committee’s] advice and recommendations . . . will not be inappropriately influenced by the appointing authority or by any special interest,” and states that agencies “shall” follow the guidelines.

EPA nonetheless argued that the Administrative Procedure Act exempts from judicial review agency actions “committed to agency discretion by law.”  In rejecting that argument, the 1st Circuit relied heavily on Department of Commerce v. New York (also known as the Census question case), in which the Supreme Court held that this exception to reviewability under the APA is “quite narrow.”

As the 1st Circuit noted, that an agency has broad discretion cannot exempt it from judicial review.  “A court could never determine that an agency abused its discretion if all matters committed to agency discretion were unreviewable.”

Finally, the Court noted that FACA’s use of squishy terms such as fairness and balance do not render judicial review impracticable:

The concepts of fairness, balance, and influence are not foreign to courts, and we are certainly capable of reviewing agency actions with reference to those concepts.

So there, EPA!

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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