Judge Timothy Kelly of the U.S. District Court for the District of Columbia heard opening arguments on Dec. 22 for Young vs. EPA, a case that concerns allegations that the Environmental Protection Agency (EPA) illegally purged both its Clean Air Scientific Advisory Committee (CASAC) and its Science Advisory Board (SAB) of representatives from the industries that their decisions would regulate.
One plaintiff, S. Stanley Young, has experience with drugmakers Eli Lilly and GlaxoSmithKline and is currently the chief executive of CGStat. He was in his second three-year term on CASAC when, in March 2021, EPA Administrator Michael Regan fired all seven committee members and all 47 SAB members.
The other plaintiff, Louis Anthony Cox, has experience in the petroleum industry and the chemical industry, working for ExxonMobil and the American Chemistry Council, among other companies and organizations. He was fired from both SAB and the CASAC.
The EPA selected new members for CASAC and SAB in June and August, respectively. Both panels included some former members of SAB or SAB-affiliated committees. The Biden administration described the new SAB in August as “the most diverse SAB since the committee was established.”
Young and Cox applied to join both panels, but were each rejected.
Represented by Brett Shumate and other attorneys from the firm Jones Day, the pair filed two briefs in the District of Columbia District Court to stop SAB and CASAC from conducting activities before they evaluate the EPA’s particulate matter standards in early 2022.
The briefs pointed out that five of seven committee members were recipients of EPA grants. One member, Elizabeth “Lianne” Sheppard of the University of Washington, had been associated with more than $60 million in money received from the EPA.
“By purging the Committee of every industry-affiliated member and replacing them with EPA-funded academics, the Agency has ensured that the Committee is no more ‘fairly balanced’ than one composed entirely of energy companies’ in-house scientists,” one Jones Day brief reads.
Department of Justice (DOJ) attorneys responded with their own brief, arguing that the court lacks jurisdiction and that “the Committee is fairly balanced in terms of the points of view represented and the functions to be performed by the Committee.”
DOJ attorneys also argued that EPA’s administrator has considerable discretion in selecting CASAC members, stating that Congress didn’t require CASAC to include any industry representatives, according to the Clean Air Act Amendments of 1977 that established it.
Kelly, a Trump appointee, questioned Shumate about the strength of the plaintiffs’ claim that they’ll face “irreparable harm” in the event that CASAC finishes reviewing particulate matter standards in its current form. The judge also asked about the case’s reviewability (the DOJ brief had emphasized 5 U.S.C. § 701(a)(2), which offers agencies discretion over many actions).
Shumate told Kelly that the 2020 case Physicians for Social Responsibility vs. Wheeler, heard in the District of Columbia District Court, “squarely addressed reviewability” of Federal Advisory Committee Act claims of the sort advanced by Young and Cox.
He also cited Department of Commerce vs. New York, a 2019 Supreme Court case that he argued shows 701(a)(2) to be construed narrowly, meaning that his clients’ case would be reviewable.
DOJ attorney John Robinson disagreed with that interpretation.
“I don’t think the Census case [Department of Commerce] changed the law on justiciability in any meaningful way,” Robinson said, later disputing that “Physicians for Social Responsibility vs. Wheeler” offered direct precedent as well. “The Administrator, as was his right under the statute, determined not to select them [Cox and Young]. That’s not evidence of unfairness.”
Shumate also argued that the EPA “reconstituted the Committee on the basis of irrelevant and improper factors—the race and sex of the nominees,” citing a staff recommendation memo.
“We did not have this document when we filed our complaint or when we filed our opening brief. We got it five days before we filed our reply brief,” he said.
That document, which was provided to The Epoch Times, consistently stresses that particular nominees would bring “gender diversity” or “ethnic diversity” if selected.
“Plaintiff emphasized a race and sex discrimination claim here. Plaintiff has not pleaded that claim. Respectfully, there’s no basis in the administrative record for such a claim,” Robinson said. “We’re prepared to address it, but it wasn’t really the subject of briefing.”
Robinson also argued that any requirement to include industry representatives would be “unworkable.”
“If ‘industry’ is entitled to a representative, why not consumers or environmental justice groups? Why stop at ‘industry’ broadly and not also require a representative from the coal, natural gas, and oil industries?” one DOJ brief reads.
Kelly questioned this argument.
“Here we have not one representative from a party that will actually have to comply with any regulations that flow from this. That strikes me as extraordinary,” he said.
Kelly concluded the hearing by noting that the case presented a “not unique, but rare set of circumstances.”
“Both sides are doing your best to apply legal regimes in various ways that, whatever they say, may or may not have been designed … their fit with this particular type of dispute is at least in question,” he said.
Shumate declined to comment on the record.
An EPA spokesperson told The Epoch Times, “As this is pending litigation, we have nothing to add.”
Department of Justice officials didn’t respond to a request for comment by press time.