A federal district court's recent ruling appears to have set a narrow precedent in limiting private parties’ ability to challenge EPA and other government agencies over the data they use in making their decisions, industry and citizen group sources say.

One industry consultant and a key government watchdog group say the ruling appears to set a limited precedent that would still preserve the ability of private parties to challenge agency data that do not conform to Bush administration guidelines.

Nevertheless, the industry consultant says industry groups will seek to limit the scope of the ruling by urging parties in the case not to appeal it. The source says industry will also seek to bring cases in other courts to create an alternative precedent.

 “Do I like [the decision]? No. Do I lose sleep over it? No. Do I wish it didn't happen? Yes,” the source says.

Since Congress passed the Information Quality Act in 2000, many industry officials 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. The law creates a process for parties to petition agencies to maximize the quality, objectivity, utility and integrity of information disseminated by the agency.

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, it is not clear whether courts will be able to review agency decisions on petitions filed under the law.

In this case, In re: Operation of the Missouri River System Litigation, a Midwestern barge company and other industry groups challenged plans by the Army Corps of Engineers to regulate water flow along the Missouri River.

As a small part of the suit, the industry groups charged that the court could review the Corps' actions by failing to respond to the groups' request to provide “information and science” about its plans for the river. The industry groups argued the Corps' failure to provide the data was subject to judicial review under the Administrative Procedure Act (APA).

However, the court rejected the industry arguments that it could review the Corps' failure to release the data.

In its ruling, the court says that because Congress failed to adequately define key terms about the data quality law's scope and requirements, it intended to provide agencies with discretion to determine whether to respond to requests to release data. The ruling says courts are not entitled to review agency actions under the APA if the agency action is discretionary.

“Absent any 'meaningful' standard against which to evaluate the agency's discretion, the Court finds that Congress did not intend the IQA to provide a private cause of action,” the June 21 ruling says.

OMB Watch, a government watchdog group, says in a July 1 briefing on the case that this portion of the ruling is significant because the court “essentially” held there are no substantive standards in the data law that permit the court to review agencies' actions under the APA.

However, the group says the court still left open the question of whether agencies' failure to comply with Bush administration guidance implementing the law could create a right to sue under the APA in the future. “The court did not address, however, whether the APA permits judicial review downstream of the [IQA] itself,” OMB Watch says.

The industry consultant agrees, noting that the companies in this case did not follow procedures required by law for challenging agency decisions. The consultant says this leaves the door open for other industry groups to challenge agency decisions that do not conform to Bush administration guidelines on data quality.

The industry source says a pending suit by the U.S. Chamber of Commerce and the Salt Institute in a federal district court in Virginia could be the basis for a broader precedent. The suit seeks release of a federal study that the group says undermines a 2002 directive by the Department of Health and Human Services urging consumers to restrict salt consumption in order to limit high blood pressure.

Date: July 1, 2004
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