Legal Battle Over Expertise: Did the EPA Create an 'Echo Chamber' on the Air Quality Advisory Committee?

On September 8th, 2023, the D.C. Circuit examined whether the U.S. Environmental Protection Agency (EPA) violated federal regulations by failing to appoint experts with industry backgrounds to its Clean Air Scientific Advisory Committee (CASAC). Two former CASAC members, who were appointed during the Trump administration but were replaced after President Joe Biden assumed office, are seeking to revive their lawsuit. They allege that the EPA's reconstitution of CASAC lacked a "fair balance" of backgrounds and viewpoints, violating the Federal Advisory Committee Act and Administrative Procedure Act [1].

Plaintiffs Dr. S. Stanley Young and Dr. Louis Anthony Cox, Jr. are represented by Brett Shumate, a partner at Jones Day. The firm has had numerous ties to the Trump administration since 2015. Partner and former White House Counsel, Don McGahn, served as one of the top lawyers during Trump’s 2016 campaign. Over the course of the campaign, the Jones Day firm earned nearly $14 million from 2015 to 2020, according to FEC records [2].

The plaintiffs targeted the composition of EPA Administrator Michael Regan's picks for members of the CASAC. They asserted that the current members lack the industry background needed to provide complete viewpoints, resulting in biased policy. Shumate argued the absence of industry experts, the sole opposition to stricter air quality regulations, creates a “one-sided echo chamber” [3]. S. Stanley Young had previously worked at Eli Lilly, GlaxoSmithKline, and the National Institute of Statistical Sciences, focusing on applied statistics and pre-clinical research in the pharmaceutical industry [4]. Louis Anthony Cox Jr. is the president of an analytics consulting company, assessing health risks and analyzing data for organizations such as the American Petroleum Institute, National Mining Association, Exxon Biomedical Sciences, and Mobil [5].

The defendants, the EPA, told the judges there was no reason to revive Young and Cox's lawsuit. Represented by Joseph F. Busa of the U.S. Department of Justice, they countered with evidence of dissenting opinions on CASAC issues. Unanimous decisions were not a guaranteed outcome with the constructed committee, justifying the existence of diversity in member viewpoints. Further defense argued that requiring maximal disagreement among committee members on all issues would be unreasonable, given the complexity of their work. Busa emphasized the impracticality of expecting the administrator to predict how all potential candidates would respond to various air quality standards.[6] During the defense, Judge Randolph raised concerns about the EPA's mention of CASAC members' racial backgrounds. He questioned whether such considerations violated the Supreme Court's June ruling, which struck down race-conscious admissions policies at Harvard University and the University of North Carolina. Busa clarified that these were incidental notations and not decisive criteria in the selection process. He reiterated that race was not a determining factor and that the selection criteria included multiple factors [7].

On September 30th, 2022, the Federal Court in the District of Columbia originally dismissed the plaintiff's previous challenge against the Biden administration's reconstitution of the CASAC, ruling that the EPA did not violate federal laws. It found that the Clean Air Act did not require industry representation on CASAC and that safeguards were in place to prevent undue influence. The court also rejected claims that the reconstitution was arbitrary and capricious [8].

The court has again been tasked with considering whether requiring industry representation on the committee was necessary and whether the EPA adequately considered the "fair balance" standard when forming the committee.