Key Court Stymies Industry Bid For Judicial Review Of Data Quality Claims

19 Oct

Posted: October 15, 2010

Inside EPA

A federal appellate court has sidestepped efforts by plaintiffs to win court review of an agency data quality decision, stymieing efforts by industry groups to set a broad precedent allowing judicial review of EPA and other agencies’ decisions when they challenge scientific and other data underlying policy measures.

Proponents of making the challenges judicially reviewable are arguing that the ruling still leaves the door open for future consideration of the question and say the prospect of judicial review of the petitions could lead to more petitions  being filed with EPA and other agencies under the Data Quality Act (DQA).

But opponents of judicial review say the ruling likely has little bearing on the legal landscape because it leaves in place the controlling precedent that affirmatively denies judicial review of agencies’ DQA decisions.

In an unpublished Oct. 14 decision, the U.S. Court of Appeals for the 9th Circuit rejected efforts by medical marijuana advocates seeking to correct a Department of Health and Human Services (HHS) finding that the drug had no medicinal value.

In Americans for Safe Access (ASA) v. HHS, the appellate court agreed with the lower court that the HHS rejection of the DQA petition filed by ASA “did not constitute final agency action” under the Administrative Procedure Act and therefore was not eligible for judicial review. The court said that because the department was addressing the issue of marijuana’s medicinal value in a separate proceeding governed by the Controlled Substances Act (CSA), its rejection of the DQA petition was not a final decision.

The DQA requires agencies to ensure that scientific and other data used to develop policy stances are objective, reproducible and peer-reviewed. The law requires agencies to accept and respond to petitions to correct allegedly flawed data used in rulemakings and other decisions.

Key federal courts have so far held that the agency responses to DQA petitions are not judicially reviewable, eliminating an enforcement mechanism for private parties to pursue challenges if agencies deny their petitions.

But industry sources are arguing that a recent ruling in the D.C. Circuit, Prime Time Int’l Co. v. Vilsack, opened the door to judicial review after finding that agencies’ DQA guidelines were “binding” on agencies like EPA. In the wake of the ruling, a host of industry and other private groups have filed a slew of new petitions  with EPA on a range of issues from chemical risk assessments to climate science issues.

Some industry sources say the 9th Circuit’s ruling builds upon the D.C. Circuit’s decision in Prime Time. “This is Prime Time part II,” says a source with the Center for Regulatory Effectiveness (CRE), an industry-funded think tank that supports judicial review of the petitions. “In both cases, the basis for judicial relief was the reviewability of the DQA guidelines.”

OMB Data Guidelines

According to the CRE website, ASA could reinforce the notion in Prime Time that DQA guidelines are binding. “The court referred to the [Office of Management & Budget] DQA guidelines when stating that the process in the CSA governed the proceeding; it did not refer to the CSA as the governing statute,” according to the group.

“In other words the court could have stated that the CSA alone trumped the DQA but it did not; it cited the OMB guidelines as the determining factor, just as was the case in Prime Time.”

But a source with the Center for Progressive Reform (CPR), a think tank that opposes judicial review for the petitions, points out that, in addition to the court rejecting the argument for review under the APA, an earlier, precedent-setting decision by the 4th Circuit in Salt Institute & U.S. Chamber of Commerce v. Michael Leavitt still supports the notion that the challenges are not reviewable.

The Salt Institute ruling, issued in 2006, was a major blow to industry efforts to use the courts to challenge EPA and other federal agencies’ DQA decisions. The DQA “creates no legal rights in any third parties,” the decision found. “Instead, it orders [OMB] to draft guidelines concerning information quality and specifies what those guidelines should contain.”

Further, the CPR source says the statutory language of the DQA and the concept of judicial economy both support the idea that judicial review should not apply to actions short of a final rulemaking. “At this point in time, judicial review is not correct,” the CPR source says.

There has been an uptick in recent months in DQA petitions at EPA, raising questions about chemicals assessments, the greenhouse gas endangerment finding and local water permitting issues. Sources say if ASA paves the way for judicial review of the petitions, it could lead to more of them being filed. “To the extent the right to judicial review exists or may exist, that will presumably encourage additional [DQA] petitions with the hope or expectation that judicial review would be available,” a knowledgeable source says.

The CRE source would not speculate on the impact of the 9th Circuit decision on the number of DQA petitions filed, but said the two recent decisions could result in agencies “giving very serious attention” to DQA-compliant petitions, but in some instances agencies may refrain from issuing a final decision as long as possible in an effort postpone judicial review.