Amending the Federal Advisory Committee Act to Protect Independent Scientific Expertise

Advisory committees serve vital roles in the Environmental Protection Agency (EPA) and other federal agencies. At EPA, advisory committees review the scientific basis of the agency's decision making, revise air quality standards, and advise the agency on its research program, among other functions. In 2017, EPA issued a directive titled "Strengthening and Improving Membership on EPA Federal Advisory Committees" ("Directive"). The Directive announced that EPA would no longer allow EPA grant recipients to serve on the agency's advisory committees. This policy resulted in an apparent industry tilt on EPA scientific committees after grant-receiving academic scientists were removed and replaced with scientists with industry ties. The Directive was ultimately the subject of three separate lawsuits, all which resulted either in the Directive being struck down or in the reversal of a trial court decision in favor of EPA. One of the most important statutes governing EPA's advisory committees is the Federal Advisory Committee Act (FACA). Under FACA, legislation establishing or authorizing advisory committees must require that they be fairly balanced and contain provisions to prevent them from being inappropriately influenced. Despite the Directive's impact on the composition of EPA's advisory committees, two court decisions relied on FACA largely for the finding that EPA had not followed proper procedures in issuing the Directive, rather than a substantive violation of FACA. The third decision did not rely on FACA at all and was likewise procedural. This Note argues that the judicial decisions concerning the Directive leaves future administrations a guide for legally reenacting the Directive's substantive mandate and that FACA is insufficient to stop a bar on grant recipient service. It then suggests an amendment to FACA that bars agencies from excluding highly qualified experts from the pool of candidates from which it selects its committee members. This amendment would create a more enforceable claim for plaintiffs challenging agency actions like the Directive, serve the underlying purpose of FACA, and support agency legitimacy.