Industry, Key Republican Suspend Push For Expanded Data Quality Act

A key House Republican and industry officials say they will withhold a legislative push to expand the controversial Information Quality Act (IQA) until after a federal appeals court rules on whether the statute grants judicial review to parties outside the government.

The decision to put off efforts to amend the act comes after industry officials have been discussing whether they should push for legislation -- possibly as part of a reauthorization of the Paperwork Reduction Act -- to amend the IQA to explicitly say that decisions made under the act are subject to judicial review. But industry officials now say they will wait until the U.S. Court of Appeals for the 4th Circuit issues a decision in the pending case Salt Institute v. Michael Leavitt, where the court is expected to rule on industry's claim that judicial review applies to the IQA. A ruling is expected early next year.

In a July 20 interview with Inside EPA, Rep. Candice Miller (R-MI), chairman of the House regulatory affairs subcommittee, similarly said she was not planning on offering legislation at this time but might consider doing so if the 4th Circuit agrees with lower courts' decisions that the IQA is not judicially reviewable.

Miller's statements came on the same day her subcommittee held the first-ever congressional hearing on the IQA, after it was enacted along with a Treasury Department spending bill that was signed into law in 2000. The two-sentence IQA, which is silent on judicial review, allows the public to petition EPA and other federal agencies to correct federally disseminated data.

Since the IQA was enacted, it has become a source of constant debate in the environmental community, with public interest groups saying the act is a tool designed for industry to slow down and thwart rules by forcing agencies to continually re-analyze data supporting policy decisions. Industry groups and Bush administration officials argue that the act is a useful tool to allow the public to ensure that policy decisions are based on sound data. But the administration opposes judicial review of the act, and EPA and other federal officials at the hearing asserted that they do not believe the act needs to be amended.

At the hearing, industry officials said the IQA could be significantly undermined if courts rule that judicial review does not apply to the act. William Kovacs, vice president for environment, technology and regulation at the U.S. Chamber of Commerce, which is a party in the Salt Institute case, argued that judicial review applies to the act. He claimed such review is needed because “federal agencies want sole discretion” over what data to use and do not want to be held accountable to the courts.

“If the chamber does not prevail in its court challenge to establish judicial reviewability of the IQA, Congress will then either have to provide for judicial review, or accept the contention that federal agencies have sole discretion over the quality of information disseminated to the public and to Congress,” Kovacs said.

Sidney Shapiro, who is a law professor at Wake Forest University and is a scholar for the left-leaning think tank Center for Progressive Reform, called for the act's repeal at the hearing, saying it causes delays in agency decision-making and creates a venue for industry to weaken existing regulations. He said that if Congress changed the act to include judicial review, it would make a “bad situation worse” and would allow industry to fight policies it disagrees with if it disputes any piece of information supporting an agency decision. In the interview after the hearing, Miller rejected the notion of repealing the act.

Instead, the lawmaker said more agency information should be available for the public to review, indicating that she was concerned that EPA uses modeling to support regulations that the public is not allowed to view. This makes it difficult for outside groups to petition the agency to correct the modeling under the IQA, she said.

Kim Nelson, associate administrator of EPA's Office of Environmental Information, said the agency's Science Policy Council was looking at that issue and would respond to Miller's staff on how it is addressing the propriety of EPA modeling information.

Nelson also said the act has required the agency to set up internal mechanisms to review petitions, forcing the agency to redirect resources. But she asserted, “That doesn't mean that redirection is harmful to the agency.”

When asked by Miller whether the act needs to be amended, Nelson said, “The jury is still out on that question . . . It's premature to think about making changes to the act.”

An official with the Center for Regulatory Effectiveness, an industry-funded watchdog group that has been heavily involved with the implementation of the act, says industry should not push for legislation even if it loses in the Salt Institute case. Instead, the official says he would bring another IQA case to the courts and press for judicial review. The official would not specify which cases his group was evaluating, but says several are under consideration. -- Manu Raju

Date: July 20, 2005

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