Revitalizing the Information Quality Act as a Procedural Cure for Unsound Regulatory Science: A Greenhouse Gas Rulemaking Case Study

Abstract

This working paper explains in detail how the Information Quality Act and implementing guidelines from the Office of Management and Budget provide a procedural law mechanism to ensure the objectivity, quality, utility, integrity and reproducibility of highly influential scientific assessments developed by federal agencies and third parties, which agencies in turn “disseminate” as support for major agency regulations. OMB’s guidelines, which are binding on all federal agencies, inter alia impose rigorous, uniform, peer-review process standards that govern agency peer-reviewer selection and retention practices. The guidelines also govern agencies’ public disclosure obligations with respect to the data, computational and computer program inputs, assumptions, and applications that are incorporated into the assessments. In addition, OMB’s guidelines require federal agencies to provide adequate administrative review mechanisms to ensure that affected persons can seek correction of agency-disseminated HISAs that agencies failed to adequately validate. Given the highly technical and specialized nature and characteristics of HISAs and the data on which they are based, the IQA and OMB’s IQA guidelines anticipate that specialized review procedures separate and apart from ordinary APA notice-and-comment procedures, must be utilized under certain circumstances. The Environmental Protection Agency (“EPA”)’s 2009 Clean Air Act Section 202(a) Greenhouse Gas (“GHG”) Endangerment Findings and the decision-making process that led to the Findings, offer an ideal case study in how the IQA applies in the rulemaking context and how agencies can contravene the law. EPA’s review of climate-science assessments disseminated in support of the Endangerment Findings were subject to four distinct IQA legal obligations, none of which EPA satisfied. These obligations related to: EPA-developed and peer-reviewed HISAs; third-party-developed and peer-reviewed HISAs; EPA’s peer review of the Technical Support Document accompanying the Endangerment Findings that summarized and synthesized the numerous HISAs supporting them into a new HISA; and EPA’s improper treatment of IQA stakeholder requests for correction. EPA and the National Oceanic and Atmospheric Administration (“NOAA”) failed to ensure that the peer reviews of the HISAs satisfied the IQA’s most rigorous peer-reviewer independence, conflict-of-interest, and panel-balance standards. As the working paper explains, businesses and other stakeholders unsuccessfully sought correction of the faulty peer review processes employed to validate the scientific assessments supporting the Endangerment Findings, and reconsideration of the Findings themselves. Such final agency action potentially gives rise to legal challenges of EPA’s failure to comply with the IQA’s peer-review standards and its denial of specialized review of technical correction requests outside of the routine rulemaking process. A review of similar past legal actions filed by aggrieved regulatory stakeholders reflects that federal courts have been generally skeptical of IQA “private rights of action.” Those complaints foundered on plaintiffs’ standing to sue, as well as their assertion of a “positive” right to properly peer-reviewed government information. This working paper proposes an alternative approach to judicial enforcement of the IQA, one which addresses past lawsuits’ shortcomings. It explains this alternative approach in the context of a challenge to EPA’s and NOAA’s noncompliance with the IQA in its actions leading up to EPA’s GHG Endangerment Findings. The suit would seek to enjoin EPA’s use of all EPA, NOAA, and other agency-developed, improperly peer reviewed HISAs supporting the Findings, as well as the regulations they have spawned, until those HISAs have been peer reviewed once again in conformance with such IQA standards.