WASHINGTON (Legal Newsline) - A federal judge has rejected calls to stop the Environmental Protection Agency from having its work reviewed by a favorable, supposedly independent panel to boost its effort to regulate formaldehyde.
The American Chemistry Council sued the EPA and the National Academy of Sciences in D.C. federal court last year, claiming they repeatedly violated federal law by ignoring conflicts of interest and limiting public access to information.
The academy operates under the Federal Advisory Committee Act, which establishes committees to evaluate federal regulation. The law requires those committees to be "fairly balanced" and independent of government agencies.
The ACC complained there were no members on the academy's committee with private industry experience to review the EPA's proposals for formaldehyde, a widely used industrial chemical.
Judge John Bates on March 15 rejected the ACC's calls for an injunction and granting the motions to dismiss of both the academy and the EPA.
He said he lacked jurisdiction to hear FACA claims against the academy because it is not a federal officer despite being a "federally chartered corporation." The U.S. Court of Appeals for the D.C. Circuit has found it is a private, non-governmental, nonprofit corporation.
"ACC further claims that this Court should find mandamus jurisdiction over the Academy because otherwise, there would be no way to enforce the procedural rights guaranteed by Section 15," Bates wrote.
"This argument confuses a necessary requirement of mandamus jurisdiction with a sufficient one. While the lack of an adequate, alternative remedy is one element of a Mandamus Act claim, it does not alone create jurisdiction."
As for claims against the EPA, Bates found the ACC lacked standing, as its injury in fact is traceable to the academy, which can't be sued.
"EPA had no duty under FACA to file a charter or to monitor the appointments and operations of the formaldehyde committee," he wrote.
"To the contrary, EPA had a legal duty to stay out of the way. In a clear contrast to the statutory provisions relating to federal advisory committees, the statute applicable to Academy committees—Section 15—prohibits the sponsoring agency from exercising 'any actual management or control' over the committee."
The academy study director, Dr. Kathryn Guyton, isn’t involved in the actual peer review but “plays an active and substantive role” in the process, ACC said in its July 2023 complaint.
She was previously a career scientist with the EPA within the Integrated Risks Information System program and was actively involved in developing the agency’s formaldehyde assessment in 2021. When solicited, academy members from former colleagues at EPA thanked the agency “for these great suggestions,” ACC said.
“This substantive, years-long involvement with the Assessment is omitted from Dr. Guyton’s biography on (the academy's) website, but it appears to create a conflict of interest,” ACC said. “Her own work will necessarily be the subject of the Committee’s review.”
The peer review committee includes Dr. Lauren Zeise, who runs the California Environmental Protection Agency’s office of Environmental Health Hazard Assessment, which works with the EPA’s Center for Public Health and Environmental Assessment. Dr. Zeise withdrew from a previous academy group over this relationship.
Dr. Ivan Rusyn worked with the IRIS program from 2011 to 2013 and the EPA peer review guidelines recommend against using the same peer reviewer on sequential assessments of the same program, ACC says.
Dr. Lianne Sheppard is chair of the EPA’s Clean Air Scientific Advisory Committee and received an EPA grant for studying long-term exposure to air pollution. She has also closely collaborated with the lead author of studies the committee will review, ACC said, without disclosing this to the public.