EPA Again Reconstitutes The SAB And CASAC; Will Deference To Advisory Boards Survive The Repeated Upheavals?

I’ve blogged numerous times about the role of EPA’s Science Advisory Board and, in particular, the Clean Air Science Advisory Committee, in providing validation for EPA’s technical decisions. Indeed, I’ve gone so far as to say that consistency with CASAC recommendations “is both a necessary and sufficient condition to surviving judicial review.”

Perhaps because of the heavy weight courts give CASAC recommendations in judicial review of EPA regulations, membership on EPA advisory panels has become something of a political football in recent years. As reported last week by Bloomberg Environmental & Energy (subscription required), EPA has appointed a completely new set of members to the SAB. This follows notice last month by Inside EPA (subscription required) that EPA was reconstituting CASAC, including the return of Tony Cox as chair of CASAC. 

As Bloomberg noted, EPA’s recent actions with respect to the SAB and CASAC simply undid the Biden administration’s wholesale replacement of advisory committee members in 2021. And of course the Biden EPA’s moves simply undid the wholesale replacements made by the first Trump administration.

It’s easy enough to attribute the back-and-forth to attempts by each administration in its turn to stack the deck to ensure that CASAC gives its blessing to EPA’s preferred outcome on any particular issue. Given other moves by this administration, though, I wonder if this administration’s goal is not to provide advisory board support to EPA’s exercise of expert discretion, but is instead simply part of an effort to deny the existence of an objective scientific reality, and thus call into question the very validity of the administrative state. Certainly, one could imagine that repeated overhauls of advisory boards might cause courts to question their objectivity and thus decrease judicial deference to advisory board recommendations.

Of course, that would be a cynical conclusion to reach and I find cynicism to be unhelpful and unproductive.