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NEW DATA QUALITY SUIT COULD FORCE EPA TO ACT ON
DELAYED PETITIONS
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Date: December 2, 2005 -
EPA could face future litigation over its long delays in acting on petitions filed under the Information Quality Act (IQA) if medical marijuana advocates succeed in a new IQA lawsuit they are planning to file against the Department of Health & Human Services (HHS), legal observers say.
If the court accepts the medical marijuana case, the lawsuit would mark the first time a court has heard a dispute over agency inaction under the IQA, and could provide a new way for outside groups to force agencies to act under the five-year-old law, which allows the public to petition the government to correct allegedly inaccurate data.
The planned suit over HHS’ failure to act on the medical marijuana petition appears to mark a new track in litigation under the law. In Salt Institute, et al. v. Leavitt, the leading lawsuit under the statute, industry sought to win judicial review of a decision an agency made under the law, rather than seeking to compel government action. But that suit hit a roadblock in a Virginia federal district court, which threw out the case because the judge said decisions under the IQA are not judicially reviewable.
Administrative law experts also say the medical marijuana advocates face an uphill fight because courts are often hesitant to compel government action since they acknowledge that agencies have limited resources to implement a wide range of priorities. As a result, suits seeking government action may result in a settlement where the plaintiffs and defendants agree to a deadline, these sources say.
Nevertheless, the advocacy group Americans for Safe Access is planning to sue HHS for its failure to respond to an administrative appeal under the act, which has been pending since last May, even though the department’s guidelines specify that it will respond to such requests within 60 calendar days. The group plans to allege that the government’s inaction under the IQA is a violation of the Administrative Procedure Act, which allows judicial review to compel agency action if such action is “unreasonably” delayed.
Industry groups have long criticized federal agencies’ implementation of the law, saying too often they do not meet deadlines to address pertinent complaints that affect consumers and businesses.
But environmentalists and public interest groups, who have criticized the act, say the delays highlight the problem with the law, which is that agencies strapped for resources cannot respond quickly to data quality requests that are almost always rejected. The critics say the act is a tool industry employs to slow down and undermine agencies’ development of regulations.
EPA has multiple outstanding petitions that violate its stated goal of responding to requests for corrections and reconsideration within 90 calendar days, according to the agency’s Web site. The agency also has made over a dozen petitioners wait longer than 100 days before responding to requests for correction.
For instance, the paint company Sherwin-Williams and the National Paint & Coatings Association have not received a final response since they filed a June 2004 petition over EPA’s use of a state ozone model rule. The agency has also been considering since last April a U.S. Chamber of Commerce petition over chemical risk values in EPA databases. But in both cases, the agency has provided interim responses to the industry petitioners, and proponents of the IQA say EPA’s implementation of the act has been far better than most other federal agencies.
The Center for Regulatory Effectiveness (CRE), an industry-funded watchdog group that has been heavily involved with using the act, issued a report last February that said across the federal government, 63 percent of petitioners had to wait over 90 days for a decision and nearly 30 percent had to wait more than 150 days. In addition, the group said that 70 percent of the time, agencies took over 90 days to issue decisions on appeals, and 41 percent of petitioners had to wait longer than 150 days. Relevant documents are available on InsideEPA.com.
The CRE is advising the Americans for Safe Access in its lawsuit and may join the case, sources with both groups say. The marijuana group’s effort is unique because left-leaning groups have been strong critics of the act. But an official with the group says the IQA has “great potential to challenge an administration that won’t budge.”
Meanwhile, in the Salt Institute case, industry is now seeking to overturn the lower court ruling rejecting the IQA challenge, which said it is not clear whether Congress intended to allow judicial review when it approved the law. The two-sentence IQA was attached to a larger appropriations bill signed into law in 2000.
Industry groups fear the outcome of the Salt Institute case, saying that if the industry appeal in the U.S. Court of Appeals for the 4th Circuit fails, it would be impossible to hold agencies accountable for their decisions. A ruling in the suit is expected early next year.
Proponents hope the medical marijuana case could strengthen the act by holding agencies accountable to acting on a petition to request data in a timely manner. “The act doesn’t mean much if agencies can keep asking for extensions,” says one industry attorney who supports the IQA.
The department has yet to respond to the medical marijuana group’s appeal of HHS’s earlier denial of its petition requesting to correct the department’s data saying marijuana is not considered to have medical value. The department contends that there is conflicting evidence on its medical uses, while the group argues that there is a “substantial consensus” that the drug can be used to treat an array of ailments, including nausea, pain, loss of appetite and spastic paralysis.
The group told HHS Secretary Mike Leavitt that he must respond by Nov. 30, or otherwise it would sue. At press time, the department had yet to respond. An HHS official says the department’s response is “still under development” but did not know when it would be finalized.
An attorney for the Americans for Safe Access says the group has yet to decide when to file the suit or the venue, but says the suit will likely be filed in the next few months in possibly the U.S. District Court for the Northern District of California.
But legal experts on both sides of the issue say success in federal court is uncertain. “Courts have been pretty reluctant to second-guess” agency priorities, says an administrative law expert who opposes the IQA. “If folks can get judicial review to get what they want pushed to the top of the pile, then everybody is going to be rushing to the courts.” -- Manu Raju
Source: Inside EPA via InsideEPA.com
Date: December 2, 2005
Issue: Vol. 26, No. 48
© Inside Washington Publishers
INSIDEEPA-26-48-4