|Monday, July 19, 2004
Industry Brief Seeks To Limit Precedent In Recent Data
A newly filed industry brief in an
ongoing data quality suit is seeking to curtail the effect of a recent ruling in
a separate federal district court suit that limited private parties’ ability to
challenge EPA and other government agencies over the data they use in making
The July 16 industry brief charges
that the recent ruling, In re: Operation of the Missouri River System
Litigation, did not properly consider a key Supreme Court test for
determining whether private parties have a right to judicial review and did not
provide sufficient analysis to justify its decision.
Industry officials have said that
they plan to use the current case, Salt Institute and Chamber of Commerce of
the United States v. Thompson, to overturn the precedent set by the
Missouri River case. The current case seeks release of a federal study
supporting a 2002 directive by the Department of Health and Human Services
urging consumers to restrict sodium intake by salt consumption in order to limit
high blood pressure.
The Justice Department did not
cite the Missouri River case in its June 25 brief but argued that federal
courts do not have jurisdiction to review agencies’ data quality
Oral arguments in this case are
scheduled for Aug. 13.
At issue is whether federal courts
can review agency decisions on private parties petitions seeking correction of
data EPA and other agencies rely on in making their decisions. The Information
Quality Act (IQA) created a process for private parties to petition agencies to
correct data and required the White House Office of Management and Budget (OMB)
to issue guidelines to agencies on ensuring the “quality, objectivity, utility
and integrity” of its data.
Since President Clinton signed the
act into law in 2000, industry attorneys have argued that agency decisions on
their petitions are “final agency actions” subject to federal court
However, the precedent-setting
ruling in the Missouri River case said the law did not provide courts
with jurisdiction over agency decision on private party petitions. The ruling
says that because Congress failed to adequately define key terms about the data
quality law’s scope and requirements, it intended to provide agencies with
discretion to determine whether to respond to requests to release data. The
ruling says courts are not entitled to review agency actions under the
Administrative Procedure Act (APA) if the agency action is
However, the ruling may have left
the door open to future industry arguments that agencies’ failure to follow OMB
guidelines implementing the law could create a right to sue under the APA in the
future, environmentalists and industry observers say.
In their July 16 brief, lawyers for
the Salt Institute and the Chamber of Commerce argue the Missouri River
ruling lacks analysis supporting its decision, calling the decision a “throw in”
claim during the final stages of that case. The brief says the data quality
issue was never properly before the court because none of the parties involved
raised that issue.
The industry brief also says the
Missouri River ruling does not properly consider the four-part test set
by the Supreme Court in a 1975 case, Cort. v. Ash, to determine if a
party had a private right of action if one was not explicitly authorized. The
test is whether: the plaintiff is of the class for whose benefit the statute was
enacted; there is any indication of legislative intent either to create a remedy
or deny one; a private cause of action is consistent with the underlying
purposes of the legislation; and the cause of action is traditionally relegated
to state law.
Industry attorneys argue that the
plaintiffs qualify for judicial review under this four-part test.
In their brief in the case, DOJ
lawyers argue that courts cannot review the industry case under the APA because
dissemination of the study does not constitute “final agency action” that is
necessary for APA review. DOJ adds that even if the warnings about salt intake
were found to be final agency action, courts would still not be able to review
the issue because correcting agency data is subject to agency discretion and is
not subject to judicial review.
DOJ also argues that the court does
not have jurisdiction to review this case because industry has not demonstrated
how warnings about sodium intake injures them -- a prerequisite to demonstrate
standing under Article III of the Constitution.
Date: July 19, 2004
Inside Washington Publishers