|Wednesday, March 08, 2006|
Ruling Sparks Industry Push For Court Review Of
Agencies' Data Decisions
Industry officials are planning to
push for a series of administrative, judicial and legislative remedies to
overcome this week's long-awaited court order that blocked their bid for a
precedent-setting ruling granting judicial review of EPA and other federal
agencies' decisions under the Information Quality Act (IQA). But key
members of the business community are split on whether to push for new
legislation that would explicitly establish private parties' right to sue under
the act or whether they should instead focus on new test cases.
The U.S. Chamber of Commerce is
seeking a new law to establish that private parties can sue the government under
the IQA. House regulatory affairs subcommittee Chairman Candice Miller (R-MI)
told Inside EPA on March 8 that she had yet to read the ruling, but may
propose legislation establishing judicial review under the act and possibly fold
that into a package of reforms to reauthorize the Paperwork Reduction
But the Center for Regulatory
Effectiveness (CRE), an industry-funded watchdog group and a leading proponent
of the act, is exploring whether to file lawsuits in other federal appellate
circuits over three ongoing IQA disputes with federal agencies, instead of
seeking a legislative fix on the judicial review issue.
Officials from the two groups agree
that the White House Office of Management and Budget (OMB) should take a more
active role in reviewing agencies' decisions under the act, a concern OMB is
acknowledging. “OMB will
continue to work with the agencies to ensure interagency consistency and the
agencies' adherence to the IQ Act and OMB's government-wide guidelines,” an OMB
The IQA, which was slipped into a
massive appropriations bill signed into law by President Clinton in December
2000, allows outside parties to petition agencies to fix alleged inaccuracies in
federally disseminated data, but is silent on the issue of judicial review.
Environmentalists and other activist groups are harshly critical of the act,
saying it is an industry tool that can chill the dissemination of information
used by agencies to justify policy decisions.
The industry debate over how to
proceed was set off March 6 with a decision in Salt Institute and U.S. Chamber of Commerce v. Michael
Leavitt, where the U.S. Court of Appeals for the 4th Circuit affirmed a
lower court ruling that the plaintiffs lacked standing to sue under the act. The
ruling is a major blow to industry efforts to use the courts to challenge EPA
and other federal agencies' IQA decisions.
Unlike the broader lower court decision in the case, the three judge
panel on the 4th Circuit ruled narrowly on the issue of whether the plaintiffs had standing to sue, and stated,
without providing reasoning, that the statute does not provides judicial review
when plaintiffs are seeking corrections of federally disseminated data. “By its
terms, the statute creates no legal rights in any third parties,” the ruling
The case stemmed from industry
groups disputing findings by the Department of Health and Human Services that
suggested that all Americans could reduce their blood pressure by lowering their
sodium consumption. The salt industry said reduced sodium consumption is
beneficial to only certain groups of Americans, and requested as part of its IQA
petition that the government make publicly available all information that
supported findings saying otherwise.
But the government refused to
provide the information, and interpreted the industry's petition as a request
for data under the Freedom of Information Act (FOIA). Both the lower court and
4th Circuit agreed with the government, with the 4th Court saying the plaintiffs
did not have a right to the data under FOIA.
“Because the statute upon which
appellants rely does not create a legal right to access to information or to
correctness, appellants have not alleged an invasion of a legal right, and thus
have failed to establish injury in fact,” according to the opinion written by
4th Circuit Judge Michael Luttig, who was rumored to be on President Bush's
short list for a spot on the Supreme Court.
The opinion was the first by a
federal appeals court on the IQA, and has sparked fears among industry officials
that the act will be rendered useless because they will not be able to use the
courts to hold agencies “accountable” if they deny requests to correct data that
EPA and other agencies rely on for their policy and regulatory decisions. The
industry plaintiffs say they are undecided on whether to appeal the case to the
full 4th Circuit, but have 45 days to make a decision.
A chamber official blasts the
ruling, saying, “No human on earth could” hold an agency accountable for a
decision under the IQA because of the 4th Circuit's opinion. The official says,
“All options are on the table” to respond to the decision and is urging Congress
to pass legislation establishing judicial review, either through reauthorization
of the Paperwork Reduction Act or other means.
The chamber official fears that
federal agencies will now be more inclined to reject data quality correction
requests. But the CRE source disputes that assertion, saying agencies' delays to
act on certain IQA petitions is a sign that they are still wary that parties
could try to sue over a final agency action under the act.
The CRE and other sources say the
Salt Institute case did not represent the best case to test whether the
act was judicially reviewable because the plaintiffs were in part seeking data,
rather than the correction request process outlined in the IQA.
CRE is also rejecting the chamber
official's calls to seek legislation that would make the IQA judicially
reviewable. “I think it's premature to seek a legislative remedy,” an official
with the group says. “I say this because the court's opinion is pretty narrow. .
. .You will get a big fight, and [legislation] could constrain the
Instead, the group argues that it
is exploring several possibilities for new litigation, saying since the facts in
these potential lawsuits differ substantially from the Salt Institute
case, the CRE would be able to establish reviewability of the act.
The group may bring an IQA suit in
the D.C. Circuit against the Occupational Safety & Health Administration
(OSHA) to challenge regulations used to identify chemicals or substances as
carcinogenic health hazards. The group in a Nov. 10, 2005, request for correction says OSHA needs to “make clear” that it is making an
independent determination that its hazard regulations are based on the data
quality standards established under the IQA.
The group alleges that OSHA is
relying on a World Health Organization (WHO) body, which is not subject to the
IQA, in order to make decisions on the chemical vinyl acetate and other
substances. The group says relying on the WHO cancer body is “improper and
illegal,” if the agency is not ensuring the information meets IQA standards.
OSHA has not made a final decision
on the request for correction, but the CRE says it may challenge a denial in the
In addition, the CRE may join the
Americans for Safe Access, a medical marijuana advocacy group, in a lawsuit
challenging the Department of Health & Human Services (HHS) denial of a
petition requesting correction of HHS data saying marijuana is not considered to
have medical value. The department contends that there is conflicting evidence
on its medical uses, while the group claims there is a “substantial consensus”
that the drug can be used to treat an array of ailments, including nausea, pain,
loss of appetite and spastic paralysis.
The department has not made a final
decision on an administrative appeal the group filed in May 2005, which some
experts say could mean that the government anticipates a lawsuit over a final
decision under the act. The marijuana group has threatened to file litigation,
possibly in the U.S. District Court in the Northern District of California to
compel the government to act on the appeal. CRE is advising the group on the
possible suit, which would end up at the 9th Circuit on appeal.
CRE says that
if the government was not concerned about litigants' ability to establish
judicial review, it would have made a final decision on the medical marijuana
petition a long time ago.
Also, CRE may file a lawsuit on a
data correction request filed with HHS' National Toxicology Program, but the
official declined to provide specifics on the nature of the complaint or the
The group says resource constraints
will only allow it to participate in one of the three potential
While CRE believes these cases
could be more successful than the Salt Institute case, critics dispute
the group's assertion.
An official with the Center for
Progressive Reform, a think tank that has called for repeal of the IQA, says
other lawsuits in other circuits, regardless of the facts, would have an uphill
battle because the 4th Circuit stated that the law does not create a private
right to action. “This has very sweeping implications,” the source
The source adds that the dismissal
on legal standing grounds makes it very difficult for legislation to establish
judicial review because the bill would also have to describe who could bring a
lawsuit forward. If any party who disputes an agency interpretation can sue, “it
would flood the federal courts” and bog down federal policies, the source
In addition, several congressional
committees could assert jurisdiction over IQA legislation, hindering industry's
push to pass legislation quickly. -- Manu Raju
Date: March 8, 2006
Inside Washington Publishers