May 27, 2019

Revitalizing The Information Quality Act as a Procedural Cure For Unsound Regulatory Science: A Greenhouse Gas Rulemaking Case Study

Lawrence A. Kogan, Esq.
Introduction – Dr. John D. Graham, Indiana University
Foreword – Jim J. Tozzi, Center for Regulatory Effectiveness

Executive Summary:

Congress passed the Information Quality Act (IQA) in 2000 to implement and amend the Paperwork Reduction Act. The law requires federal agencies to ensure the quality, objectivity, utility, and integrity of the scientific, technical, and statistical information that federal agencies adopt and disseminate to the public. Although the law is nominally a procedural statute, this WORKING PAPER explains how regulated entities and other stakeholders can successfully seek judicial enforcement of the IQA when agencies rely upon flawed science for federal rules, and those rules impose paperwork, compliance, and other burdens.

The Office of Management and Budget (OMB) is responsible for implementing the IQA. OMB’s IQA Guidelines required that each federal agency develop and adhere to their own IQA guidelines, and set out minimum criteria for scientific peer review of agency-drafted and third-party studies and scientific assessments, as well as criteria for the selection of peer reviewers. OMB dictated that these peer-review standards be especially rigorous for “highly influential scientific assessments.” Federal agencies must also provide an administrative review mechanism that will allow affected entities to seek correction of agency-disseminated information that was not adequately validated. Agencies routinely carry out this mandate by addressing requests for correction as part of their responses to public comments in a final regulation—an approach, the paper argues, that does not afford sufficient due process to stakeholders.

The Environmental Protection Agency’s (EPA) 2009 greenhouse gas Endangerment Findings, and the decision-making process underlying them, offers an instructive IQA case study. A review of the extensive record and the peer review activities underlying the Findings reveals extensive violations of conflict-of-interest and other IQA-related standards. EPA also did not consider stakeholders’ challenges regarding these violations in a timely or sufficiently specialized manner. Stakeholders’ requests for reconsideration of the Findings were also rejected.

Stakeholders faced with such adverse, final agency actions would traditionally consider legal action against the responsible federal agency. As the WORKING PAPER explains, however, federal courts have been generally skeptical of regulated entities’ private causes of action to redress agencies’ noncompliance with IQA standards. Those complaints have foundered on plaintiffs’ standing to sue, as well as their assertion of a positive right to properly peer-reviewed government information.

This paper proposes an alternative approach to judicial enforcement of the IQA, one which addresses past lawsuits’ shortcomings. It explains this alternative approach in the context of a challenge to EPA’s violation of IQA during its development of the Endangerment Findings. The contemplated cause of action is based on the theory that Congress intended that the IQA, as an implementation of the Paperwork Reduction Act, protect the negative right of a designated class of persons not to be burdened, financially or otherwise, by poor quality science that agencies disseminate in support of major regulations. The lawsuit would formally be brought as an action under the Administrative Procedure Act (APA).

Private entities, such as regulated businesses could establish standing to sue based on the particularized economic injuries they have suffered from regulatory burdens. State governments could take advantage of U.S. Supreme Court precedents that convey standing Copyright © 2015 Washington Legal Foundation ixunder the doctrine of parens patriae when such public actors are suing in their quasi-sovereign capacity. A narrowly-pled, factually-supported challenge utilizing the APA would not only be consistent with the longstanding presumption that Congress intends judicial review of administrative action, but it would also be sufficient to overcome some federal courts’ presumption against implied causes of action.

Fueled by decades of ineffective oversight, federal agencies’ respect for science and the scientific process has severely diminished. For that reason, one can easily foresee many potential applications of the enforcement framework offered in this paper. Other actions by EPA where stakeholders have strongly questioned the supporting science could be particularly inviting targets as well. They include: EPA’s “Waters of the United States” proposal; its social cost of carbon proposal; its proposed ozone regulations; its NEPA review of the Keystone XL pipeline; its study on the impacts of hydraulic fracturing; and EPA and NOAA disapproval of state coastal nonpoint pollution control programs. Another possible target could be the Fish and Wildlife Service’s threatened or endangered species designations.<<<Get Full Study>>>

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SHOCK: NR House Committee Discovers “Post-Normal” Science in ESA

FOR IMMEDIATE RELEASE
Monday, December 15, 2014

Committee Report Uncovers Lack of Independence & Accountability of Peer Review Process for ESA Listing Decisions

WASHINGTON, D.C. – House Natural Resources Committee majority staff released a report today that questions the independence and accountability of the peer review process in recent Endangered Species Act (ESA) listing decisions. The report entitled, “Under the Microscope: An examination of the questionable science and lack of independent peer review in Endangered Species Act listing decisions” studies the federal government’s peer review process for 13 different ESA listing decisions made by the U.S. Fish & Wildlife Service (FWS) since July 2013. The report found numerous examples of potential bias and conflicts of interests with the peer reviewers and a lack of transparency and consistency in the peer
review process.

“The decision of whether or not to list a species under the Endangered Species Act has significant implications for the economy and livelihoods of impacted communities and private landowners. As such, these important decisions must be based on sound science that has undergone an independent peer review. This report raises troubling concerns about the lack of independence of the peer review process and whether many current, upcoming or recently finalized listing decisions, such as the White Bluffs Bladderpod in my Central Washington district, are scientifically sound,” said House Natural Resources Committee Chairman Doc Hastings (WA-04). “With hundreds of ESA listings driven by this Administration’s closed-door settlements with litigious groups, discovery of any potential bias about how ESA data and science are reviewed casts serious doubt on the credibility of these decisions, and provides more evidence that the ESA needs continued oversight and updating.”

Specific findings of the report include:

* The FWS does not have clear or consistent policies and procedures in place across all Regions to ensure that peer reviewers with potential conflicts of interest are identified and screened;

* The FWS generally seeks peer review of its proposed listing decisions at the same time they are made available for public comment, rather than earlier in the process when the peer reviewers may have more meaningful input;

* The FWS regularly recruits the same scientists on whose work a listing decision is based to serve as peer reviewers, including those who have known policy positions or affiliations with advocacy groups that support the listing decision, rather than truly independent scientists;

* The FWS uses scientists as peer reviewers who have received grants or other financial assistance from the Department of the Interior and its bureaus and other agencies; and

* The FWS routinely withholds from the public the identities of peer reviewers, qualifications of peer reviewers, and details about their comments.

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Individual Accountability

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