In ‘defense of science,’ researchers sue EPA over move to overhaul advisory boards

A group of the Environmental Protection Agency’s current and former advisory board members sued the agency Thursday over Administrator Scott Pruitt’s controversial decision to bar scientists who receive agency grants from serving as outside advisers.

Calling the new policy “unlawful, arbitrary and capricious,” the complaint filed in U.S. District Court for the District of Columbia argues that Pruitt did not have authority to change the agency’s ethics rules. A handful of environmental advocacy and public health organizations also joined the lawsuit.

In announcing the policy in October, Pruitt said his intention was to avoid conflicts of interest and ensure the objectivity of the agency’s 22 advisory committees – groups of subject-matter experts that offer regulators guidance on topics ranging from children’s health to hazardous waste.

But risk analysis specialist Robyn Wilson, of Ohio State University, who is one of the plaintiffs in the lawsuit, argues that the restriction unnecessarily duplicates existing vetting procedures. As a first-time EPA grant recipient whose term on the agency’s Scientific Advisory Board was cut short last month, she sees the policy change as both insidious and “morally reprehensible.”

“It all sounds very well intentioned, wanting more diversity on the boards, wanting more voices to be heard. Who is going to disagree with that?” Wilson said. “But I think it is an attempt to get rid of people who they assume are not on board with the current administration’s goals, which are deregulatory.”

An agency spokesperson said Thursday that the EPA does not comment on pending litigation.

The other individual plaintiffs are Joe Arvai, a University of Michigan researcher who just completed his second term on the Science Advisory Board, and Edward Avol, a professor of clinical preventive medicine at the University of Southern California who has received EPA grants and previously served on advisory panels. They and Wilson are joined by Physicians for Social Responsibility, the National Hispanic Medical Association and the International Society for Children’s Health and the Environment – groups with members who have EPA grants or serve on committees and cannot do both now. They are represented by lawyers from the advocacy firm EarthJustice and the Columbia Environmental Law Clinic.

Their complaint argues that Pruitt’s new ethics policy is an unprecedented break from the past, when grant recipients were allowed to sit on advisory committees and potential conflicts of interest were handled on a case-by-case basis. Scientists such as Wilson, Arvai and Avol, it says, now must choose between public service on a committee and funding that’s necessary for their research.

The complaint also alleges that the directive is contrary to the Federal Advisory Committee Act, which specifically allows recipients of federal money to serve on advisory committees as long as they are not closely involved in the matter on which they’re advising. The act requires that advisory groups have balanced membership and not be unduly influenced by regulated industries.

After issuing the directive, Pruitt subsequently appointed 66 new experts to various advisory committees. Many hail from industry or state government, and two new committee chairs – Michael Honeycutt, the top toxicologist for the state of Texas, who will lead the Scientific Advisory Board, and consultant Louis Anthony “Tony” Cox, who will lead the Clean Air Scientific Advisory Committee – have a history of sharply criticizing the way the EPA has conducted its science.

The new policy is being used “to remove highly qualified independent scientists from these boards,” EarthJustice lawyer Neil Gormley, the lead attorney on the case, said in an interview. “And they’re being replaced with people who are almost exclusively friendly to industrial polluters … It’s ironic because the rationale that’s been given for this new policy is to fight conflicts of interest.”

The complaint asks the court to declare Pruitt’s directive illegal, vacate the policy and reinstate anyone who was removed from an EPA committee because of the new rule.

It remains unclear what legal traction the lawsuit is likely to have. Despite its claims that Pruitt’s actions are unlawful, an EPA administrator traditionally has wide latitude to appoint members of the agency’s advisory boards.

In his October directive, Pruitt noted that the law requires federal advisory committees to be “fairly balanced in terms of the points of view represented and the functions to be performed.” He said appointing a wider array of state, tribal and local officials – industry representatives got no specific mention – helps to achieve such balance.

“What’s most important at the agency is to have scientific advisers that are objective, independent-minded, providing transparent recommendations,” Pruitt told an audience at the conservative Heritage Foundation this fall. “If we have individuals who are on those boards sometimes receiving money from the agency … that to me causes questions on the independence and the veracity and the transparency of those recommendations that are coming our way.”

Critics quickly claimed that Pruitt had turned the idea of “conflict of interest” on its head by not requiring restrictions on advisers who are funded by industry.

Wilson insisted her participation in the lawsuit is not an attempt to win back her board seat but rather “about the principle” of defending the ability of qualified researchers to advise the EPA.

“There’s nothing glamorous about being a member of the Scientific Advisory Board. It’s a service,” she said. “If this policy can be overturned for the sake of science and science-based policy, then that’s the reason to do it… . To me, it’s the defense of science.”