Assessing the Administrative Law Weaponry in the ‘War on Science,’ by Margaret Sova McCabe

by Guest Blogger — Friday, Oct. 27, 2017

Effective federal regulation has long been informed by scientific experts external to government. Since 1972, the Federal Advisory Committee Act (FACA) has operated to ensure that this external expertise is offered transparently and in a fair, balanced manner. The question explored in this post is whether our administrative law procedural safeguards are adequate to ensure that regulatory decisions remain informed by scientific expertise.

On September 9, 2017, The New York Times editorial board published President Trump’s War on Science. The board argued that the dismissal of five scientists from the EPA Board of Scientific Counselors and the disbanding of NOAA’s climate science advisory committee are ominous signs indicating “a government-wide purge of people, particularly scientists, whose research and conclusions about the human contribution to climate change do not support the administration’s agenda.” A test of this theory comes on October 31, 2017, when the EPA’s Scientific Advisory Board (SAB) FACA charter will expire; under the terms of its current charter the body is tasked with providing independent advice and peer review to the EPA administrator on the scientific and technical aspects of environmental issues including anthropogenic pollution sources. Whether the charter will be revised, renewed, or both will provide greater clarity about President Trump and Administrator Pruitt’s (the administration) views on the role of external scientific expertise and input into U.S. environmental policy. In the lead up to this decision, there is ample evidence that this administration is comfortable not only politicizing science, but also limiting the role of external scientific expertise in regulatory decision making.

Rather than focusing on how misguided excluding external expertise may be, it is more important to understand the consequences of the administration’s actions in the administrative law context. In particular, is FACA adequate to maintain balanced expert input into the regulatory process by scientists? If it is not, is it best to embrace the disbanding of certain committees and rely on other processes to challenge the administration when agency action is arbitrary and capricious? The remainder of this post explores the adequacy of FACA in particular, but also posits that if an administration is willing to jettison scientific expertise and politicize issues as critical as climate change, then it is far better to make the administration show its hand directly rather than the opacity that advisory committees can create. Voters may then react accordingly at the ballot box and lawyers can employ useful tools of administrative law such as the Freedom of Information Act (FOIA), the Sunshine Act, and the Administrative Procedure Act (and in particular §706) to retain some rationality in regulatory decision making where scientific expertise is critical, such as environmental and public health.

Congress passed FACA to establish a more open government and insulate it from special interests to the extent possible. Both the executive and Congress have long relied on experts external to government for input on policy; FACA’s purpose was both to rein in the use and influence of external committees and to ensure public access to necessary committees’ deliberations. Under FACA, committees are controlled primarily through the use of two-year charters to define their scope of work and specific open meeting requirements. Congress also required that it and the executive continually reassess the purpose and need for such groups lest they become inefficient, redundant, and/or no longer necessary to policymaking. Overall, FACA provides clear processes and standards for advisory committees, thus acknowledging that external input into complex regulatory and policy issues likely results in better decision-making even if such committees bring the potential for special interest influence.

The specific provisions of FACA that ensure fair use of external expertise by the executive branch can be generalized into two domains (setting aside constitutional issues): (1) whether a group has been properly established or utilized by a president, and (2) whether once established, the members are fairly balanced and are free of inappropriate influence from either the appointing authority or special interests. The ‘formed and utilized’ question is relevant where an administration appears to be seeking input from experts without convening them under FACA. This provision is particularly important in any ‘war on science’ where an administrator’s schedule or public statements indicate that expertise is sought without the transparency FACA requires. However, FACA challenges are not easy to win.

Two cases illustrate the courts’ cautious work in determining Congressional intent for ‘formed and utilized’ questions. In 1989, the Supreme Court found that Congress had not intended that FACA apply to the ABA Standing Committee on the Federal Judiciary and the information on judicial nominees that it shared with the government. Reasoning that presidents had a long-standing relationship with the private entity that had not been altered by previous executive orders regulating advisory committees, the Court concluded that Congress had not intended to upset the confidential consultation process with FACA. Pub. Citizen v. U.S. Dep’t of Just. et al., 491 U.S. 440 (1989).

On a narrower but no less political question, the D.C. Circuit ruled FACA inapplicable to the President Clinton’s Task Force on National Health Care Reform finding that First Lady Clinton fell within the definition of a full-time officer or employee of the federal government. The court reasoned that Public Citizen directed courts to guard against “the absurd result . . . [of] reading FACA to cover every instance when the President (or an agency) informally seeks advice from two or more private citizens” and that the exclusion of the ABA Committee from FACA required resolving the First Lady question “a fortiori in favor of the government.” Ass’n of Am. Physcians & Surgeons et al. v. Clinton, et al., 997 F.2d 898, 911 (1993).

These cases illustrate the challenges in bringing certain entities within FACA. However, these challenges can lead to a conclusion that regulatory activity based on science may be better off without advisory committees because when FACA doesn’t apply other useful provisions of good government law do. Additionally, because groups governed by FACA are only advisory in nature, their work can sometimes muddy the basis for an administrator’s decision concerning regulatory policy. Thus, where FACA is inapplicable or undesirable, the administrator charged with ultimate regulatory authority must contend with challenges to any agency action brought under the APA or other judicial review statutes. This may be a better outcome in a climate where science is politicized.

The ‘fairly balanced’ question is thornier because, in a sense, advisory committees always provide an avenue for special interest influence. However, particularly in partisan times, fairly balanced committees free of special interest influence are critical. Yet FACA provides a weak avenue for challenging committee configurations. Absent specific law upon which courts can evaluate balance or inappropriate special interest, challenges to an administration’s committee member selection or administrative actions based on their input are likely non-justiciable. This reveals a significant weakness in FACA’s intent to preserve balance and objectivity when experts are relied upon for regulatory guidance.

For example, in a case concerning the 2015 US Dietary Guidelines Advisory Committee (DGAC) the court found that a review of the question of improper influence was non-justiciable because the criteria for what constituted such influence were committed to agency discretion by law. Physicians Committee for Responsible Med., et al. v. Vilsack, et al. 2016 WL 5930585 (N.D. Cal. Oct. 12, 2016). In that case, the DGAC included a member who had received research funding from the Egg Nutrition Center (ENC). The DGAC concluded that cholesterol was no longer a ‘nutrient of concern for overconsumption’ (though it advocated for moderation in its consumption in other portions of its report). The Plaintiff viewed the removal of cholesterol as a nutrient of concern as evidence that the ENC-funded committee member exerted special influence in favor of the egg industry and in violation of FACA because with less emphasis on cholesterol limits, people would eat more eggs.

The court identified the glaring issue with FACA special interest review when it wrote, “[there] is no law describing when a participant may be held to have ‘inappropriately influenced’ an advisory committee.” Id. at 3. The court additionally noted that there is no law that provides any guidance (to it, to committee members, or to administrators) concerning how to assess whether special interest (or the administration) is improperly influencing a committee’s work. In light of this gap, the power rests solely with the executive to comply with FACA on questions of fair balance and improper special interest influence – a scary prospect if there is a war on science. The answer is not simply defining concepts such as ‘fairly balanced’, ‘inappropriately influenced’, or ‘special interest’ in FACA or related regulations because that is likely an impossible task. Rather, it is more fruitful in this political climate to consider how it may be better to embrace and encourage the administration’s elimination of advisory committees on the theory that the administration’s regulatory decisions can be made more transparent and accountable with other administrative law tools.

Given the upcoming decision on the SAB and concerns about a broader ‘war on science’, it is also important to distinguish experts from special interests. Science is not a ‘special interest.’ Rather, it is a touchstone of rational policy making based on the facts as the scientific method has revealed them. Most certainly, scientific advisory committees must be fairly balanced from within relevant disciplines. But to suggest that ‘fairly balanced’ means that industry’s views have been unfairly excluded (such as in the case of coal power) from scientific discourse completely undermines FACA. ‘Corporate interests’ should not be ‘balanced’ against ‘scientific interests’ in a committee’s formation unless Congress so requires in an enabling statute. Instead, in industries where science is relevant, science should inform the best regulatory choices for government and industry should adapt to what is determined to be in the public interest.

Disbanding or creating advisory committees and changing the scope of their work is clearly within the administration’s power under FACA. Where does this leave us if this administration is engaging in a ‘war on science’? While FACA provides tools to challenge the use of experts outside of the advisory committee context and it provides us with ways to challenge committees’ balance and the role of special interest, in most cases these challenges will be unsuccessful because the substantive law results in non-justiciability or resolution in favor of the government. Therefore, we might not want to be so hasty in condemning the disbandment of FACA governed groups if that disbandment provides a clearer view of administrative decision making that can be challenged with careful and perhaps more fruitful use of the Sunshine Act, FOIA, and the APA (or other judicial review statutes) to ensure good government.

[NB: For readers who would like a refresher on FACA, I highly recommend Stephen Crowley and William Funk, The Federal Advisory Committee Act and Good Government, 14 Yale J. on Reg. 451 (1997). It inspired me to begin working on a new article that will more closely examine how to solve, with process more likely than substance, the regulatory challenges presented by the politicization of science.]

Margaret Sova McCabe is a Professor of Law at the University of New Hampshire School of Law.

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