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EPA Pesticide Panel Latest Test Case for Defeated Adviser Policy

Aug. 21, 2020, 10:01 AM

When the EPA’s pesticide advisers meet later this month, at issue will be not just the topics they deliberate—but who’s doing the deliberating in the first place.

Environmental groups are planning to use an Aug. 25 public meeting to challenge the Environmental Protection Agency over the composition of its Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) advisory panel.

The pushback is the latest sign that such groups are paying close attention to the EPA’s compliance with a February ruling from the U.S. District Court for the Southern District of New York. That ruling stopped the agency from banning agency grantees from serving on advisory committees, as had been laid out in an earlier directive under then-EPA chief Scott Pruitt. The D.C. Circuit also ruled against the directive in a separate case in April.

Pruitt’s stated aim was to eliminate pro-agency bias on the committees, which serve as a check on the EPA’s work by conducting peer reviews of technical documents and analyses. But critics accused him instead of seeking to bar the most qualified experts in order to make room for industry-friendly advisers.

Now the fight is playing out again, over the legal interpretation of the February decision.

The composition of EPA’s advisory panels matters in part because they provide confidence to the public over the agency’s actions and regulations, said Robyn Wilson, professor of risk analysis and decision science at the Ohio State University and a former member of the EPA’s Science Advisory Board.

“It’s a check and balance to make sure the public has confidence that the agency is using the best available science to make their regulatory decisions,” Wilson said.

‘More Poisons’

The most recent concern of groups such as Earthjustice and the Natural Resources Defense Council (NRDC) is that they say less than a fifth of the 21 nominees to the FIFRA advisory panel come from academia. They want the EPA to reopen the nominations process to include more non-industry representatives.

Patti Goldman, managing attorney of Earthjustice’s northwest regional office, said there’s “no magic number” of academic representatives who should serve on an EPA advisory board, but Wilson said a good ratio would be at least half.

Jennifer Sass, a senior scientist at the NRDC, said most of the advisory committees she has seen are composed of “about half academics.”

The EPA has said the February decision doesn’t block it from regulating who gets to sit on its advisory committees, or revisit the membership of committees already in place. An EPA spokeswoman this month said the agency “is not planning to seek additional nominations” for more scientists who would supplement the permanent members of the FIFRA advisory panel.

The panel’s permanent membership hasn’t been announced yet. Goldman said she expects that to happen either at, or shortly before, next week’s meeting.

But if the panel ends up dominated by industry representatives, environmental groups worry the committee will work to “put more poisons out into the market,” Sass said.

The Aug. 25 preparatory virtual session is aimed at fleshing out specific questions the panel will discuss at a more substantive meeting next month that will address whether computers, cells, and other emerging test methods can replace animals in evaluating potential pesticide harms to fetuses and in early life.

Lawsuit Potential

Earthjustice is considering suing to block the panel from meeting until the EPA has ensured it’s welcoming individuals who’ve taken agency grants, consistent with the February ruling, Goldman said.

A successful lawsuit also could block the agency’s use of any of the committee’s work because it was illegally constituted, she said.

Six of the 21 nominees put forth by the EPA work chemical companies, either directly or as a consultant, while four list a university as their sole affiliation, according to a July 30 letter by Earthjustice, the NRDC, and Pesticide Action Network North America.

Alan Morrison, a law professor at George Washington University, agreed with the groups, saying that by not reopening the nomination process, the EPA “has now doubled down on their illegal conduct.”

Despite the EPA’s loss in court, “at the first opportunity to be lawful again, they are refusing to do what is required for the FIFRA science advisory panel,” Morrison said.

Shaun Goho, deputy director of Harvard University’s Emmett Environmental Law and Policy Clinic, said he doesn’t think the EPA’s action violates the New York court order, but “it is certainly inconsistent with the spirit of that decision.”

‘Fair and Balanced’

Separately, the Environmental Defense Fund in July condemned the EPA’s list of 47 potential candidates to its Science Advisory Committee on Chemicals, saying it contained an overabundance of industry representatives.

The EPA “remains committed to maintaining fair and balanced advisory committees,” and is encouraging qualified members to apply for membership, an agency spokeswoman said in July.

Also in response to the April D.C. Circuit ruling against the advisory policy, the EPA last week said it would extend the time for submitting nominations to its Science Advisory Board to Aug. 31, from the beginning of May.

The policy has attracted the attention of lawmakers, including Rep. Eddie Bernice Johnson (D-Texas), the chairwoman of the House Committee on Science, Space, and Technology.

“I will be watching closely for any sign that the selection process is tainted by political or ideological bias,” she said in a statement this week. “Advisory committees such as the SAB serve a vital function in assessing the scientific and technical basis of agency policies, and the agency must not allow any criteria other than scientific expertise to influence their composition.”

To contact the reporters on this story: Stephen Lee in Washington at stephenlee@bloombergindustry.com; Pat Rizzuto in Washington at prizzuto@bloombergindustry.com

To contact the editor responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com

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