| Tuesday, October 19, 2004 |
Former EPA General Counsel Recommends Data Quality
Reforms
EPA’s former general counsel is
suggesting that the White House’s Office of Management and Budget (OMB) require
federal agencies to reference the Information Quality Act (IQA) in rulemaking
preambles, effectively paving the way for certain data-based disputes to be
challenged in federal court. The recommendation is likely to be controversial,
and has already prompted protests from environmentalists who say the move could
complicate ongoing efforts to clarify the role of courts in determining data
quality.
Gerald Yamada, who served in EPA’s
general counsel’s office for 13 years and was acting head of the office from
March to October of 1993, wrote in a recent “opinion letter” for the Washington
Legal Foundation that data quality reviews “can be simply added to the Paperwork
Reduction Act discussions in the preambles to proposed and final rules. If this
modification is adopted for rulemaking, then agencies can adopt similar
procedures for their guidelines, reports, or other complex federal
actions.”
The Washington Legal Foundation’s
stated goals are to provide legal services and publish documents that support
free enterprise principles. Yamada’s article, dated Oct. 1, is posted on the
group’s website. The group has litigated a number of high-profile cases
involving EPA standards on air, water and waste.
Yamada tells Inside EPA that
his proposal would allow petitioners unsatisfied with agency responses to their
formal requests for data corrections to take those grievances to court, at least
in instances where information led to a rulemaking. He adds that his suggestion
is not intended to explicitly pave the way for judicial review of data quality
challenges but to force agencies to consider and discuss data quality during the
rulemaking process.
But a source with the regulatory
watchdog group OMB Watch calls the suggestion “a really bad idea” and urges the
administration to reject the plan. OMB Watch is a non-profit research and
advocacy group that favors tough environmental and public health
standards.
The IQA, enacted in December 2000
as part of an unrelated appropriations bill, required OMB and federal agencies
to establish data quality guidelines, including a mechanism to request
corrections to data that allegedly fail to meet the requirements of the act. The
issue of whether data complaints are judicially reviewable is contentious and
long-standing, with no clear resolution so far.
Many environmentalists and public
interest groups say the IQA was intended to provide industry and others with the
opportunity to delay or halt regulations. Environmentalists argue that such data
quality petitions should not be judicially reviewable. But industry and other
supporters of the law say it was intended to ensure that governmental policies
are based on sound science and should be reviewable in court.
A test case is pending in federal
district court in Virginia, Salt Institute and Chamber of Commerce of the United
States v. Thompson, where the judge in oral arguments last month questioned the
industry group’s ability to challenge the law.
The Department of Justice (DOJ)
filed a June 25 brief in that case arguing legal challenges to the IQA are not
permitted. The DOJ brief followed a July ruling in In re: Operation of the
Missouri River System Litigation by a federal district judge in Minnesota
rejecting industry’s arguments that it could challenge the IQA. But that case
was not based on a formal data quality request for correction, and sources say
the Salt Institute ruling -- expected next month -- will provide the definitive
answer to that question.
The DOJ brief in the Salt Institute
case is the first time the administration has gone on record opposing judicial
review for data quality challenges. The administration settled a previous
challenge over climate change, and did not weigh in on the Missouri River
case.
An OMB official says agencies
should respond to all data quality correction requests clearly in the rulemaking
process, but adds, “If evidence emerges that agencies are not responding
adequately to these requests, then a case for stronger OMB guidance should be
considered.” But the source adds that it is too soon to discuss far-reaching
reforms.
An EPA source says that if OMB
ultimately makes such changes, it would assure that such challenges are
reviewable in court.
But an OMB Watch source warns that
any administrative change to data quality guidelines, such as the ones suggested
by Yamada, could render useless any precedent set by the Salt Institute
case.
“This is clearly an effort to make
the data quality act more challengeable in court,” the source says. “If OMB
modifies the guidelines, it would give them a second chance on judicial review.
It seems to be an effort to shore up what is being seen as a fading ability on
judicial review, particularly because of the DOJ opinion. . . . If they change
the guidelines, that would preclude the total use of [any] precedent” set in the
upcoming Salt Institute ruling.
The source adds that aside from the
litigation issue, adding data quality requirements to rulemakings would only
further slow what is already a time-consuming process, and would counter
agencies’ efforts to respond quickly to data quality requests for
corrections.
But Yamada tells Inside EPA
that EPA in particular has too easily satisfied its responsibilities under the
data quality guidelines by simply telling those filing requests for correction
that their comments will be considered in a future rulemaking. Yamada adds that
he was surprised that OMB’s original guidelines omitted the preamble
requirement, considering that preambles are required to address dozens of
statutes and mandatory reviews, such as the Administrative Procedure Act (APA)
and the National Environmental Policy Act.
When EPA simply relegates
correction request responses to consideration in future rulemakings or risk
assessments, “You don’t know what they do [with the request] in the end. It is
never clear. But their responsibilities under the data quality guidelines are
done,” Yamada says.
By adding the preamble requirement,
data quality would be addressed as a front-burner issue, and would help with
legal challenges, Yamada says. He notes that faulty science in rulemakings also
goes against APA requirements.
“The [IQA] imposes an affirmative
duty to use good data, it is not a shell game,” he says. “Agencies now don’t
disclose how they comply with the statute.”
But Yamada says if the reform is
made, it would not make data reviews or rulemakings less time consuming.
“Administrative reform would not speed this up, but would bring
structure.”