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.”

Read WLF Opinion Letter