I’ve posted a lot over the years about the role of EPA’s Science Advisory Board in judicial review of agency decisions. The short version is that, on scientific questions, EPA’s going to be on thin ice if its regulatory decisions are inconsistent with SAB advice. Recently, I’ve speculated on the level of deference that EPA will get on scientific issues if it starts to ignore scientific consensus. Last week, these two strains began to weave together, as the SAB decided to review of number of EPA proposals, including efforts to relax CAFE standards and EPA’s proposal to restrict the use of “secret science.”
The decision follows release of a memorandum prepared by an SAB work group recommending full SAB review of several proposals. The work group review was highly critical of certain of the proposals. For example, on the so-called “Glider Kit” proposal, the work group memo stated that:
The scientific and technical statements in the proposed rule, and the scope of analyses in the proposed rule, are dubious and highly questionable.
Although EPA claims that the proposed rule hinges on “legal authority,” the proposed rule is clearly predicated on various scientific and technical claims that are of unknown or dubious merit, including a study cited by EPA that has since been withdrawn by its performing organization.
That does seem a mite problematic to me.
I don’t think that environmentalists or those who simply believe in good science should be dancing in the street quite yet, but it is evidence that the SAB, even following removal of a number of members and installation of new members thought to be friendly to the administration’s agenda, remains at least somewhat independent of agency leadership. I do think that EPA is going to have great difficulty in defending these rules if the SAB ultimately finds that they are not scientifically sound.