The Federal Advisory Committee Act (“FACA”) requires all federal departments and agencies to ensure that the membership of each of their scientific and other advisory committees “be fairly balanced in terms of the points of view represented and the functions to be performed.” 5 U.S.C. app. 2 § 5(b)(2). The Clean Air Scientific Advisory Committee (“CASAC”) advises EPA on adoption and revision of national ambient air quality standards, such as particulate matter standards, which directly affect industrial operations throughout the United States.
Early in the Biden administration, the newly appointed EPA Administrator, Michael Regan, abruptly fired all 7 members of CASAC. He then “reconstituted” the committee not only by appointing university-affiliated academics who receive millions of dollars in EPA research grants, but also by deliberately excluding all scientists with industry affiliations. Two such excluded scientists, including CASAC’s former chair, are suing EPA for violating FACA’s “fairly balanced” membership requirement.
A Washington, D.C. federal district court dismissed the suit, holding that to be “fairly balanced,” CASAC need not include industry-affiliated scientists. Instead, according to the district court, a committee composed of scientists representing a variety of scientific disciplines is all that FACA requires. The plaintiffs have appealed to the U.S. Court of Appeals for the D.C. Circuit.
ALF long has been one of the nation’s foremost advocates for sound science in judicial and regulatory proceedings. Consistent with its sound-science mission, ALF has submitted an amicus brief to the D.C. Circuit in support of the plaintiffs. The amicus brief was co-authored by ALF Executive Vice President & General Counsel Larry Ebner and Sarah Spencer, an appellate litigation partner at Christensen & Jensen in Salt Lake City. ALF Advisory Council members with scientific backgrounds provided helpful input.
ALF’s Amicus Brief:
ALF’s amicus brief argues that EPA’s deliberate and categorical exclusion of well-qualified, industry-affiliated scientists from CASAC violates FACA’s “fairly balanced” membership requirement.
Contrary to the district court’s opinion, CASAC’s functions are not limited to “technocratic tasks.” Instead, CASAC’s statutory mandate is broader, and necessarily and directly implicates the technological, logistical, economic, and other interests of regulated industries. ALF’s brief explains that this is why the perspective of industry-affiliated scientists is essential for CASAC to be “fairly balanced in terms of the points of view represented” on the committee:
“There is no way a scientific advisory committee composed of federally funded, ivory-tower academics—an advisory committee whose like-minded membership deliberately excludes all scientists who have been affiliated with regulated industries and may have divergent opinions about the need for stricter environmental regulation—is ‘fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee.’”
ALF’s brief also explains that FACA’s “fairly balanced” membership requirement promotes sound science:
“The scientific credibility of environmental regulatory recommendations affecting myriad industries throughout the United States—such CASAC’s recommendations to adopt stricter national ambient air quality standards for emissions of particulate matter—is significantly undermined where, as here, the points of view of well-qualified scientists with industrial-sector experience are deliberately excluded.”