Friday, September 03, 2004
Judge Questions Industry Effort To Have Courts Hear Data Law
Industry attempts to have
federal courts review the data that agencies use to make decisions appear to
have suffered a setback as a federal judge questioned whether industry groups
in a key case have standing to sue and suggested that the data quality law does
not provide authority for courts to review the information.
“I'm having trouble seeing
[statutory] language that provides for judicial review” of data quality
decisions, U.S. District Judge Gerald Bruce Lee said during Sept. 3 oral
arguments in a case that industry sources are hoping will establish courts'
rights to review agency data decisions.
At issue is whether federal
courts can review agency decisions on private parties’ petitions seeking
correction of data EPA and other agencies use when making their decisions. The
Information Quality Act (IQA) created a process for private parties to petition
EPA and other 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 data.
Since Congress passed the
IQA, industry officials and other observers have argued it could create a new
way for parties to sue EPA and other agencies over the data the agencies use in
their decision-making. Critics have charged that the law is intended to delay
agency action by creating a new mechanism for industry to challenge the data
behind EPA and other agencies’ decisions.
However, courts have not yet
ruled on whether courts can review agency decisions under the law. Earlier this
year, an informal ruling from a federal district court in Minnesota suggested
that courts did not have jurisdiction to review data quality challenges.
Since then, industry sources
have pinned their hopes on a case pending in a federal district court in
Virginia, Salt Institute and Chamber of Commerce of the United States v.
Thompson, to set a precedent allowing federal courts to review agency
decisions under the law. The suit is targeting a study that Department of
Health and Human Services (HHS) used to justify a 2002 recommendation urging
consumers to restrict sodium intake by salt consumption in order to limit high
Industry says that HHS'
failure to release the study, as well as flawed assumptions in the study,
raises questions about the validity of the department's recommendation.
However, during oral
arguments Sept. 3, Judge Lee of the U.S. District Court for the Eastern
District of Virginia challenged whether industry had standing to make its claim
because they could not demonstrate that the HHS recommendation harmed them. Lee
also questioned whether the court has authority to review the claim even if
standing is established.
Specifically, Lee appeared to
question whether industry met the three-part test to determine whether a party
has standing to sue: he questioned whether the industry groups had, in fact,
suffered an injury; whether the industry groups could trace their injury to the
HHS study because the data are already available from other sources; and he
questioned whether a court ruling would remedy the situation.
Requiring a change in the
HHS recommendation would not “remove the data from discourse,” he said, echoing
government claims that the industry groups could not trace their injury back to
the HHS-sponsored study because that data have already been available from
“What makes this claim more
than a generalized grievance?” Lee asked, adding that industry expects it has
standing only because “the government did not do what you wanted.”
While industry attorneys
argued that the results of the study have been used to create a negative effect
on the salt industry, the judge was not convinced, in part, because the study
in question is not the first to recommend that Americans reduce their intake of
The judge also questioned
whether the plain language of the IQA or its legislative history provided the
court with the authority to review HHS' decisions. Lee told industry attorneys
that neither the legislative history or the statute itself mentions a judicial
right of review.
“You're saying [the IQA] is
a sea change” in how courts address agency actions, Lee said, but “where do you
find that in the legislative history?” The industry attorneys agreed that there
was little legislative history on the issue, adding that they were “happy to
rely on the text.” But Lee responded that there was no such authority.
The judge also expressed
concern that allowing courts to review agency actions would have the effect of
limiting scientific discourse. “It's going to stifle science, isn't it,” Lee
But industry attorneys
objected to that characterization, arguing that the quality of the data and not
the findings themselves were at stake. “You're not going to get into the
science. That's not what this is about,” one industry attorney said.
Another industry attorney
told Inside EPA following the oral arguments that these policy concerns
have no merit. The government has raised the issue as a “boogie man,” the
source said, arguing that giving courts the ability to review agency data would
result in a more transparent rulemaking process. The attorney added that if the
court dismisses their claim, the Chamber of Commerce and the Salt Institute
would appeal the decision.
Lee told the attorneys that
he expects to issue a decision by December.
September 3, 2004