Friday, September 03, 2004



Judge Questions Industry Effort To Have Courts Hear Data Law Complaints


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 blood pressure.


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 other sources.


“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 sodium.


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 asked.


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.


Date: September 3, 2004

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