News Release
March 1, 2023
ALF Brief Opposes Exclusion of Industry Scientists From Key
EPA Advisory 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." 

Atlantic Legal Foundation
The Atlantic Legal Foundation, which long has advocated for sound science in judicial and regulatory proceedings, has filed an amicus brief in the U.S. Court of Appeals for the District of Columbia Circuit arguing that EPA's deliberate exclusion of all industry-affiliated scientists from the Clean Air Scientific Advisory Committee ("CASAC") violates the Federal Advisory Committee Act ("FACA").

Case Background

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). 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 D.C. Circuit court of appeals.

ALF's Amicus Brief

ALF's brief in Young v. EPA, No. 22-5305 (D.C. Cir.), 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.

The amicus brief argues that EPA’s categorical exclusion of well-qualified, industry-affiliated scientists from CASAC not only violates FACA’s “fairly balanced” membership requirement, but also undermines the scientific credibility of CASAC's analyses and recommendations concerning national ambient air quality standards.

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 because the interests of regulated industries are directly affected by CASAC's work, 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.

ALF's brief argues, for example:

"Industry-affiliated scientists’ real-world knowledge, experience, and judgment are needed to ensure, or at least enhance, the credibility of scientific modeling, including interpretation of the modeling results that EPA uses to inform its clean air and other environmental rulemaking."

More fundamentally, ALF's brief 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 emission of particulate matter—is significantly undermined where, as here, the points of view of well-qualified scientists with industrial-sector experience are deliberately excluded."
Media Contact: Larry Ebner | Tel: 202-349-1421
About the Atlantic Legal Foundation

For more than 45 years, the Atlantic Legal Foundation, a national, nonprofit, nonpartisan, public interest law firm, has advocated in the Supreme Court, federal courts of appeals, and state appellate courts for individual liberty, free enterprise, property rights, limited & responsible government, sound science in judicial & regulatory proceedings, and effective education, including parental rights and school choice.
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