This is like pouring salt on a wound.
The U.S. Chamber of Commerce and the Salt Institute , an industry group, challenged in court in 2004 the science beneath government statements that Americans would benefit from reduced salt intake. The lawsuit cited the Information Quality Act, which passed Congress in 2000 and set up a process for requesting "corrections" of agency data. The Health and Human Services Department refused to change its position in the salt case, though, and the District Court said the chamber had no legal standing to ask for review.
Hoping to secure a favorable judgment from a conservative court, the business groups appealed to the U.S. Court of Appeals for the 4th Circuit . But earlier this month, a panel of that court issued a stinging rebuke. It upheld the rights of federal agencies to have the final word on the quality of the facts, figures and research they use in rulemaking and other decisions.
"By its terms, this statute creates no legal rights in any third parties. Instead, it orders the Office of Management and Budget to draft guidelines concerning information quality and specifies what those guidelines should contain," the decision said.
Chamber officials said the ruling undermines a key Bush administration initiative, also known as the Data Quality Act, which requires federal agencies to use and disseminate information that is useful, has integrity and is objective.
William L. Kovacs , the chamber's vice president for environment, technology and regulatory affairs, said the ruling "obliterated" the federal law. "We're left with the arrogance of the agencies. They have been told no one can challenge them."
Passed as part of an appropriations bill, the Data Quality Act was the linchpin in business's effort to challenge agencies on the science and underlying data of regulations. What worried business was that there was no judicial review of an agency's final word on a challenge -- and outside parties did lose disputes with agencies, according to the OMB.
Government figures showed there were 85 "requests for correction" in 2003 and 2004, and 10 of those led to some sort of change by the agency involved. Some were resolved, some are pending and 45 were denied. More than half of the denials were appealed to the agencies and 13 of those were turned down again.
The court ruling delighted opponents of the data quality review process, who believe it was created by the Bush administration to tie up the regulatory process in challenges and appeals of agency decisions.
"It is the best possible result," said Rena Steinzor , a law professor at the University of Maryland and board member at the Center for Progressive Reform , a liberal think tank.
The business community is split on how to proceed. Several strategies are under consideration.
James Tozzi , a former OMB official and a proponent of the Data Quality Act, said he would like to take another agency decision to court. He believes the chamber case was not a strong candidate to win judicial review.
Tozzi said he hopes that a challenge by a California group supporting the use of marijuana for medical purposes will offer a better test case.
In the interim, Tozzi said, OMB should treat petitions as it does major rules: OMB's Office of Information and Regulatory Affairs should review them and send them back to agencies if fixes are necessary.
Kovacs said perhaps administrative law judges within agencies could settle disputes or OMB could have an ombudsman.
For example, the chamber has challenged data "inconsistencies" in the science the Environmental Protection Agency routinely uses, but the issue has been ongoing for the past two years.
Sources familiar with OMB's implementation of the data quality law said business is unlikely to get another hearing because OIRA is involved already in how agencies handle petitions and challenges to their data.
"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," said Alex Conant , OMB spokesman.
Another avenue is a legislative fix as part of the ongoing reauthorization of the Paperwork Reduction Act.
Rep. Candice S. Miller , chairwoman of the House Government Reform subcommittee with jurisdiction over the law, said, "The Information Quality Act is an important good government statute ensuing that government information is of the highest quality before it is disseminated." Despite the court ruling, she said she thought Congress "intended that agency decisions under this act be reviewed by the courts." She said other cases might bring different results and Congress would make legislative changes if necessary.