//  4/13/18  //  In-Depth Analysis

Can Scott Pruitt be stopped in court? 

For the moment, I’m not talking about whether the ethically challenged Environmental Protection Agency chief could face legal consequences for (e.g.) retaliating against EPA staff members who questioned the propriety of his bullet-proof vehicle.[1] I’m talking, instead, about whether courts might stop Pruitt’s most recent maneuver to circumvent science.

Here’s the latest: as Pruitt confirmed last month, EPA is considering issuing a directive stating that the agency cannot consider scientific research when crafting regulations unless the underlying data supporting that research is made publicly available.  The (supposed) rationale?  EPA wants to improve “scientific rigor.”  It (purportedly) believes that allowing open access to data will allow studies’ conclusions to be more thoroughly tested.  “Mr. Pruitt,” his spokeswoman says “believes that Americans deserve transparency.”

All of these buzzwords—transparency!  Open access to data!  Scientific rigor!—sound really nice.  But dig a little bit deeper, and a disturbing picture emerges.  Many scientific studies that track the long-term health of human subjects promise confidentiality.  If they didn’t, few people would voluntarily disclose the intimate details of their lives.  And because of those confidentiality agreements, scientists who conduct such studies can’t publicly release their underlying data.  Thus, many studies which track the long-term effect of pollutants on human health would, under Pruitt’s proposed directive, be disqualified from consideration when EPA is promulgating pollution standards.

That’s no accident.  Pruitt’s proposed policy is aimed at disqualifying from EPA consideration two landmark health studies: the Harvard Six Cities Study and the American Cancer Society’s Cancer Prevention Study.  Both studies tracked human subjects over the course of decades.  Both studies definitively demonstrated that long-term exposure to fine particulate matter—a pollutant emitted by many industrial sources—can kill.  These conclusions are not subject to serious scientific doubt.  Indeed, the underlying data from the studies has been repeatedly re-analyzed, and independently validated, by neutral analysts.  As a result, the Six Cities Study and the Cancer Prevention Study have been foundational to a number of major EPA regulations.  Those regulations include life-saving (though costly) measures that reduce particulate matter emissions from power plants.  But because the confidential data in those studies cannot be publicly released, EPA consideration of those studies would henceforth be verboten under Pruitt’s “open data” rule.

Pretty much everybody (even Pruitt’s supporters) understands that his proposed “open data” policy is pretext for targeting these two studies.  That’s not particularly surprising.  The fossil-fuel industry, which emits large amounts of particulate matter, has been attacking the studies for years.  Pruitt, meanwhile, has never been shy about his alliance with regulated industries, or about his desire to roll back as many environmental regulations as possible.  His coziness with fossil-fuel interests dates back to his days as Oklahoma Attorney General, when he entered into an alliance with energy firms to challenge as many environmental regulations as possible.  And since being named EPA chief, Pruitt has systematically acted to stymie as many environmental regulations as possible—even when the best available scientific evidence suggests that the costs of failure to regulate will far outweigh the benefits.  

But Pruitt has a problem: when the EPA ignores, or glosses over, the best available scientific evidence, its actions are susceptible to legal challenge.  Hence the cunningness of Pruitt’s move.  The current EPA’s anti-regulatory agenda is vulnerable because it flies in the face of the best available scientific evidence.  Unable to get around the science, Pruitt is craftily attempting to redefine what EPA can count as the “best scientific evidence.” 

So, can Pruitt’s gerrymandered reimaging of “science” be stopped in court?  Maybe.  It’s a basic principle of administrative law that, when making a decision, an agency must consider all “relevant data, and articulate a satisfactory explanation for its action.”   Of course, that doesn’t mean that the EPA must consider literally every “scientific” study when crafting a regulation.  EPA needs to be able to distinguish good science from bad.  A hand-scribbled paper entitled “Todd’s Very Scientific Paper on Global Warming,” for example, is not entitled to the same consideration as a report from the Intergovernmental Panel on Climate Change.

Still, courts have cautioned that EPA may not simply cherry-pick scientific studies that support its agenda.  Accordingly, when EPA makes a decision to disregard a study, it must at least provide a “reasonable explanation” for doing so. And a reviewing court could well find unreasonable a decision by Pruitt to trash a vein of studies EPA has repeatedly relied on in the past.  That’s because—for all the superficial appeal of “transparency” and “openness”—the scientific community generally does not consider the public release of data a hallmark of a study’s reliability.  Scientists do not typically disclose such private data when engaging in peer review.  Nor is private data typically turned over to journals which publish such studies. 

What’s more, there are exceedingly good reasons to assure the subjects of long-term health studies that their data will remain private.  Many people will not enroll in longitudinal studies without such promises.  As Yessenia Fuenes notes on Earther, confidentiality is particularly important for building trust with communities of color (where many people are understandably skeptical of scientific researchers).  Other communities—particularly working-class communities—are also hesitant to disclose private information.  For example, ocean scientist Andrew Rosenberg testified before Congress that “fishermen and others who work on the water are intensely protective of data about their activities.”  A study which does not include promises of confidentiality, then, may well be missing information about key demographics.  

So, yes.  All of this—the lack of scientific basis for Pruitt’s proposed policy, the crucial role confidentiality agreements play in longitudinal studies, and the fact that EPA would henceforth be disregarding externally validated studies it has relied upon for years—could well lead a reviewing court to conclude that it EPA’s “transparency” rationale is “unreasonable.” 

That outcome, however, is far from a foregone conclusion.  Under settled principles of administrative law, a court reviewing EPA’s decision to exclude such studies will apply a deferential standard of review.  A court, in other words, will not negate EPA’s decision to exclude a study just because it disagrees.  Rather, it will only negate such a decision if it concludes that EPA’s proffered reasons are not even “rational.”  That is typically a very difficult showing to make.   

Which leads to the elephant in the room.  As noted, virtually everybody understands that Pruitt’s “transparency” excuse is actually geared towards eliminating from EPA consideration two valid (but pesky) scientific studies.  But a reviewing court is unlikely to probe Pruitt’s subjective motivations.  Nor is a court likely to consider Pruitt’s demonstrated hostility to science that inconveniences his deregulatory agenda.  A court reviewing the “transparency” directive probably will not consider, example, Pruitt’s decision to remove all references to climate change from EPA’s website.  Nor will it consider his decision to bar respected scientists and academics from EPA’s advisory boards.  Instead—despite all the evidence of Pruitt’s consistent crusade against inconvenient science—a court reviewing Pruitt’s “open data” directive will likely limit its review to whether EPA’s stated rationale for its decision is “reasonable.” 

Perhaps this is a deficiency in the field of administrative law specifically, where the lawfulness of an agency’s action rises and falls almost entirely on what the agency says.  But it’s also just a feature of a legal system that, generally, assumes a modicum of good faith among its political actors.  True, our legal system is challenged when the head of the Environmental Protection Agency is entirely opposed to environmental protection.  But it’s also challenged when the President fires the FBI director to impede an investigation; when Census questions are manipulated to ensure a less accurate count; when a Supreme Court seat is held open for 400+ days for political purposes.

Maybe, just maybe, courts can stop Pruitt’s latest directive.  But in the long term, avoiding lasting damage—to the environment, to the rule of law, and to democracy—means removing pyromaniacal actors like Scott Pruitt from their seats of power.

@EliNSavit

 

[1] Just for fun, though, I’ll note that 5 U.S.C. 2302 prohibits adverse employment action against individuals who discloses “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”


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