A close up shot of beakers filled with clear liquid.

EPA Use of Science

Pro­tect­ing Sci­ence-Based Rulemaking

2017-2021

  • April 2018

    In April 2018, the Envi­ron­men­tal Pro­tec­tion Agency (EPA) pub­lished a pro­pos­al that would lim­it its reliance on sci­en­tif­ic stud­ies that do not pro­vide pub­lic access to all under­ly­ing data and method­olo­gies. Health stud­ies are crit­i­cal com­po­nents of the sci­en­tif­ic basis for many EPA rules. Because of patient pri­va­cy oblig­a­tions, many health stud­ies are not able to pub­lish patient-spe­cif­ic data, there­by mak­ing them vul­ner­a­ble to being exclud­ed from reg­u­la­to­ry con­sid­er­a­tion under the EPA’s proposal.

  • May 2018

    In May 2018, a coali­tion of eight attor­neys gen­er­al sub­mit­ted a let­ter to EPA Admin­is­tra­tor Scott Pruitt request­ing that the agency halt the pro­posed rule to lim­it the use of sci­en­tif­ic evi­dence in pro­mul­gat­ing rules. The let­ter also urged the EPA to con­sult with the Nation­al Acad­e­my of Sci­ences before mov­ing for­ward with any pro­posed changes to the EPA’s use of sci­ence in the reg­u­la­to­ry process. If the EPA is unwill­ing to with­draw the pro­pos­al, the attor­neys gen­er­al asked for an exten­sion of time to file com­ments on the pro­pos­al. Two weeks lat­er the EPA announced it would extend the com­ment dead­line until August 2018, and that it would hold a pub­lic hear­ing on the pro­pos­al in July 2018.

    At the end of May 2018, sev­en attor­neys gen­er­al sub­mit­ted a let­ter to the Nation­al Acad­e­my of Sci­ences request­ing that the Acad­e­my for­mal­ly com­ment on the pro­posed rule. The attor­neys gen­er­al not­ed the impor­tance of hav­ing our nation’s lead­ing sci­en­tists weigh in on the EPA’s pro­posed rejec­tion of cer­tain types of peer-reviewed sci­en­tif­ic stud­ies from con­sid­er­a­tion in reg­u­la­to­ry pro­ceed­ings. The three Pres­i­dents of the Nation­al Acad­e­my of Sci­ences sub­se­quent­ly filed com­ments that expressed grave reser­va­tions regard­ing the administration’s proposal.

  • July 2018

    In July 2018, the attor­ney gen­er­al offices of New York and Wash­ing­ton, D.C. pro­vid­ed oral tes­ti­mo­ny at an EPA hear­ing on the pro­posed rule. In August 2018, New York Attor­ney Gen­er­al Bar­bara Under­wood and New Jer­sey Attor­ney Gen­er­al Gur­bir Gre­w­al led fif­teen oth­er attor­neys gen­er­al in sub­mit­ting com­pre­hen­sive writ­ten com­ments on the April 2018 pro­pos­al. The attor­neys gen­er­al urged the EPA to aban­don the pro­posed rule because it is incon­sis­tent with exist­ing fed­er­al law, which requires the EPA to con­sid­er the best sci­en­tif­ic evi­dence available.

  • March 2020

    In March 2020, the EPA released a sup­ple­men­tal notice of pro­posed rule­mak­ing to mod­i­fy and expand the April 2018 pro­posed rule. The new pro­pos­al directs the agency to give pref­er­ence to stud­ies with pub­lic data — a change from the agency’s orig­i­nal pro­pos­al to dis­qual­i­fy stud­ies with­out pub­lic data alto­geth­er — but extends the orig­i­nal proposal’s restric­tions beyond for­mal rule­mak­ing process­es to apply to all of the EPA’s sci­ence and research.

    Lat­er in March 2020, a coali­tion of four­teen attor­neys gen­er­al led by now-New York Attor­ney Gen­er­al Leti­tia James and New Jer­sey Attor­ney Gen­er­al Gre­w­al sent a let­ter to the EPA ask­ing the agency to extend the unusu­al­ly short pub­lic com­ment peri­od to 120 days. The attor­neys gen­er­al empha­sized that an exten­sion is nec­es­sary giv­en that states, health­care pro­fes­sion­als, and sci­en­tists who should weigh in on the pro­pos­al are not able to devote the time need­ed to eval­u­ate the pro­pos­al in light of the COVID-19 pan­dem­ic. The attor­neys gen­er­al also urged the EPA to con­sult with the Nation­al Acad­e­my of Sci­ences and the broad­er sci­en­tif­ic com­mu­ni­ty before mov­ing for­ward with changes. The coali­tion reit­er­at­ed its call for the EPA to aban­don its effort to restrict the use of sci­en­tif­ic evi­dence in its rule­mak­ing and not­ed that the sup­ple­men­tal pro­pos­al fails to address any of the seri­ous con­cerns pre­vi­ous­ly raised by the coali­tion. In April 2020, the EPA extend­ed the com­ment peri­od by 30 days.

  • May 2020

    In May 2020, New York Attor­ney Gen­er­al James and New Jer­sey Attor­ney Gen­er­al Gre­w­al led a coali­tion of eigh­teen attor­neys gen­er­al in fil­ing com­ments on the sup­ple­men­tal notice of pro­posed rule­mak­ing. The com­ments detailed the attor­neys general’s oppo­si­tion to the sup­ple­men­tal notice as arbi­trary and capri­cious and unau­tho­rized by law.

  • Jan­u­ary 2021

    In Jan­u­ary 2021, dis­re­gard­ing the con­cerns raised by the attor­neys gen­er­al, the EPA pub­lished its final rule to lim­it the agency’s reliance on stud­ies that do not make their under­ly­ing data pub­lic. Lat­er in Jan­u­ary, a coali­tion of 18 attor­neys gen­er­al led by New York Attor­ney Gen­er­al James filed a com­plaint chal­leng­ing the final rule as unlaw­ful, arbi­trary, and capri­cious and urg­ing the court to vacate it. In the com­plaint, the attor­neys gen­er­al empha­sized that the rule is in direct con­flict with EPA’s core mis­sion of pro­tect­ing human health and the envi­ron­ment. The coali­tion high­light­ed that the final rule will sub­vert well-estab­lished agency prac­tices for devel­op­ing sci­ence-based reg­u­la­tions, sig­nif­i­cant­ly under­min­ing the agency’s core respon­si­bil­i­ties to use the lat­est,” gen­er­al­ly accept­ed,” and best avail­able” sci­ence when imple­ment­ing sub­stan­tive reg­u­la­to­ry statutes. 

  • Feb­ru­ary 2021

    Short­ly, after the change in admin­is­tra­tions, in Feb­ru­ary 2021, a dis­trict court in Mon­tana vacat­ed the rule.

Pre­serv­ing the Role of Sci­en­tists in Policy-Making

2017-2021

In Octo­ber 2017, EPA Admin­is­tra­tor Scott Pruitt released a direc­tive that pro­hibits sci­en­tists and experts who are recip­i­ents of EPA grants from serv­ing on EPA fed­er­al advi­so­ry com­mit­tees (FACs). FACs pro­vide the EPA with sci­en­tif­ic guid­ance as the agency engages in rule­mak­ing, and help shape the agency’s over­all direc­tion. Exclud­ing lead­ing sci­en­tists and experts from serv­ing on FACs will deprive the EPA of the sci­en­tif­i­cal­ly sound and bal­anced guid­ance that have informed the agency’s pol­i­cy­mak­ing for decades. State attor­neys gen­er­al have par­tic­i­pat­ed in efforts to chal­lenge the direc­tive and assem­ble more infor­ma­tion on the imple­men­ta­tion of the directive.

Physicians for Social Responsibility Litigation

  • Decem­ber 2017

    A num­ber of orga­ni­za­tions, includ­ing Physi­cians for Social Respon­si­bil­i­ty (PSR) filed suit against the EPA chal­leng­ing the law­ful­ness of the direc­tive as arbi­trary and capri­cious and con­trary to the Fed­er­al Advi­so­ry Com­mit­tee Act. 

  • June 2018

    In June 2018, Wash­ing­ton Attor­ney Gen­er­al Bob Fer­gu­son and a coali­tion of nine attor­neys gen­er­al filed an ami­cus brief in the PSR lit­i­ga­tion. The ami­cus brief object­ed to the arbi­trary and capri­cious line-draw­ing used by the EPA to exclude inde­pen­dent sci­en­tif­ic experts from serv­ing on FACs, while con­tin­u­ing to wel­come par­tic­i­pa­tion by indus­try-fund­ed scientists.

  • Feb­ru­ary 2018

    In Feb­ru­ary 2019, the fed­er­al dis­trict court in the Dis­trict of Colum­bia dis­missed PSR’s suit chal­leng­ing the law­ful­ness of the directive.

  • April 2019

    In April 2019, PSR and the oth­er plain­tiff orga­ni­za­tions noti­fied the dis­trict court that they were appeal­ing the court’s dis­missal of their law­suit chal­leng­ing the direc­tive to the Dis­trict of Colum­bia Cir­cuit Court of Appeals.

  • August 2019

    In August 2019, Wash­ing­ton Attor­ney Gen­er­al Robert Fer­gu­son led a coali­tion of 11 attor­neys gen­er­al in fil­ing an ami­cus brief with the D.C. Cir­cuit in sup­port of Physi­cians for Social Respon­si­bil­i­ty. The coali­tion argued the direc­tive vio­lates uni­form eth­i­cal stan­dards for exec­u­tive agen­cies” by bar­ring EPA grant recip­i­ents from serv­ing on EPA advi­so­ry com­mit­tees, severe­ly lim­it­ing the num­ber of inde­pen­dent aca­d­e­m­ic sci­en­tists serv­ing on com­mit­tees and allow­ing indus­try-fund­ed rep­re­sen­ta­tion to triple. The brief also not­ed that the EPA’s rever­sal of its long­stand­ing FACs pol­i­cy is arbi­trary and capri­cious because it failed to iden­ti­fy any actu­al con­flicts of inter­est amongst grant recip­i­ents or acknowl­edge that the mere receipt of grants is too incon­se­quen­tial to dis­qual­i­fy indi­vid­u­als from ser­vice (except in spe­cial circumstances).

  • April 2020

    In April 2020, the D.C. Cir­cuit ruled in favor of PSR and the attor­neys gen­er­al, decid­ing unan­i­mous­ly that the EPA’s direc­tive is review­able and remand­ed the case to the low­er court for fur­ther proceedings.

Union of Concerned Scientists Litigation

  • Jan­u­ary 2018

    In Jan­u­ary 2018, the Union of Con­cerned Sci­en­tists (UCS) filed a law­suit chal­leng­ing the issuance of the direc­tive as arbi­trary and capri­cious and in vio­la­tion of FACA in fed­er­al dis­trict court in Mass­a­chu­setts. Wash­ing­ton Attor­ney Gen­er­al Bob Fer­gu­son led a coali­tion of 9 attor­neys gen­er­al in fil­ing an ami­cus brief in sup­port of UCS in the lit­i­ga­tion in Sep­tem­ber 2018. The ami­cus not­ed that the direc­tive is incon­sis­tent with Congress’s vision for mem­bers of key EPA advi­so­ry com­mit­tees and that the direc­tive hand­i­caps the role of inde­pen­dent sci­en­tists in EPA sci­en­tif­ic decision-making.

  • March 2019

    In March 2019, the fed­er­al dis­trict court in Mass­a­chu­setts dis­missed UCS’s com­plaint. UCS appealed the deci­sion to the First Cir­cuit Court of Appeals, where in July 2019, Wash­ing­ton Attor­ney Gen­er­al Fer­gu­son led 10 attor­neys gen­er­al in fil­ing an ami­cus brief in sup­port of UCS.

  • March 2020

    In March 2020, the First Cir­cuit reversed the Mass­a­chu­setts fed­er­al dis­trict court’s deci­sion and ruled that UCS’s case may move for­ward as the APA-based claims are judi­cial­ly review­able. The lit­i­ga­tion was remand­ed back to the fed­er­al dis­trict court in Mass­a­chu­setts for fur­ther proceedings.

Freedom of Information Act Request on Implementation

  • May 2018

    In May 2018, Wash­ing­ton Attor­ney Gen­er­al Fer­gu­son filed a law­suit against EPA for its fail­ure to respond to his Free­dom of Infor­ma­tion Act (FOIA) request for com­mu­ni­ca­tion between the agency and FAC mem­bers on imple­men­ta­tion of the Octo­ber 2017 direc­tive. After EPA pro­vid­ed Wash­ing­ton more than 1,700 pages of the sought com­mu­ni­ca­tion, EPA and Wash­ing­ton reached a set­tle­ment agree­ment that dis­missed the com­plaint against the agency. The com­mu­ni­ca­tion showed FAC mem­bers express­ing con­fu­sion about the alleged need for the direc­tive and con­cern about how FACs would be able to ful­fill their pur­pose under the directive.