Earlier this week, the D.C. Circuit Court of Appeals became the latest court to reject EPA’s position that its decision to bar scientists receiving grants from EPA from serving on its advisory panels was not subject to judicial review. The D.C. Circuit went farther than the First Circuit; it went to the merits and found that EPA’s policy was arbitrary and capricious under the Administrative Procedure Act.
The decision should not come as a surprise. Once the new EPA policy was found subject to judicial review, the outcome was obvious. It was not just that EPA’s new policy was unreasonable; it was that EPA provided no reasoned argument at all to justify its rejection of the Office of Government Ethics rules which state that a scientist may obtain agency grants and still provide independent advice to the agency on an advisory panel.
As the Court noted:
although agencies remain “free to change their existing policies,” they still must “provide a reasoned explanation for the change.”
As stupid as I think the new EPA policy is, I believe that I could have created a record that would have allowed the policy to survive judicial review. That the agency did not do so is only more confirmation of my position that this administration cares more about ammunition for its twitter feed than it does about actually governing.