Protect Democracy & Union of Concerned Scientists win appeal in case challenging expert ban

Today, the First Circuit overturned a lower court decision dismissing Protect Democracy’s lawsuit challenging the EPA’s policy banning thousands of academic and non-profit scientists from serving on EPA advisory committees. The First Circuit opinion is here. The case will now return to the trial court. 

Protect Democracy and Jenner & Block represent the Union of Concerned Scientists (UCS) and an individual advisory committee member in a suit against the U.S. Environmental Protection Agency (EPA), challenging former EPA Administrator Scott Pruitt’s Directive removing academic and non-profit scientists who receive EPA grants from EPA advisory committees. In October 2017, Pruitt announced that he would exclude scientists from serving on any of the twenty-three EPA scientific advisory committees if they had received EPA grants to fund any of their research. The Directive is arbitrary, without any factual or legal grounding, and violates the Federal Advisory Committee Act, which requires advisory committees to be fairly balanced and protected from inappropriate influence by the appointing authority.

As the complaint explained, the Directive is an attack on science itself. By accusing academic and non-profit grant-funded scientists of having a conflict of interest, Pruitt sought to portray legitimate, independent scientists—who provide accurate, evidence-based information backed by verifiable, peer-reviewed research in order to inform environmental policy—as just another interest group seeking to advance an agenda. But grant recipients perform independent scientific research and are not beholden to the EPA for any particular result. The EPA’s interest is in obtaining accurate information in order to make the best policy, and independent scientists on advisory committees provide just that, whether or not they receive EPA grants. 

Today, the First Circuit agreed that our claims under the Federal Advisory Committee Act (“FACA”) are reviewable. The FACA, said the First Circuit, “clearly requires agency heads at least to consider whether new restraints on committee membership might inappropriately enhance special interest influence and to eschew such restraints when they do so.” The Circuit also found that plaintiffs sufficiently alleged “that the directive skewed the composition of EPA committees in favor of regulated industries,” “that the EPA offered no rational reason for finding that any benefits of the policy justified the alteration of balance and influence,” and that “the EPA did not even acknowledge that the directive had such an effect.”

President Trump and his administration have demonstrated a hostility to science and to developing policy based on impartial and balanced scientific evidence. But scientists and their expertise are more necessary now than ever. The ability of ordinary citizens to participate in robust public discourse and to hold government leaders accountable requires a baseline agreement about fundamental facts. Anti-democratic leaders often attempt to delegitimize and suppress authoritative voices that offer accurate information that can be used to inform the public or criticize the government. A policy that excludes the nation’s most eminent scientists not only silences key, unbiased voices in EPA policy development, but signals government disapproval of the former committee members’ work—including, for example, critical climate change research. 

Government suppression and delegitimization of scientists and scientific research is anti-democratic and impedes the American public’s ability to knowledgeably engage with pressing national issues. Protect Democracy and Jenner & Block LLP will continue to litigate this case as it returns to the district court. 

See the complaint here.

See the First Circuit’s opinion here.

See our post about filing the case here.