Judge Timothy Kelly of the U.S. District Court for the District of Columbia heard opening arguments on Dec. 22 for Young vs. EPA, a case that concerns allegations that the Environmental Protection Agency (EPA) illegally purged both its Clean Air Scientific Advisory Committee (CASAC) and its Science Advisory Board (SAB) of representatives from the industries that their decisions would regulate.
One plaintiff, S. Stanley Young, has experience with drugmakers Eli Lilly and GlaxoSmithKline and is currently the chief executive of CGStat. He was in his second three-year term on CASAC when, in March 2021, EPA Administrator Michael Regan fired all seven committee members and all 47 SAB members.
The other plaintiff, Louis Anthony Cox, has experience in the petroleum industry and the chemical industry, working for ExxonMobil and the American Chemistry Council, among other companies and organizations. He was fired from both SAB and the CASAC.
Young and Cox applied to join both panels, but were each rejected.
“By purging the Committee of every industry-affiliated member and replacing them with EPA-funded academics, the Agency has ensured that the Committee is no more ‘fairly balanced’ than one composed entirely of energy companies’ in-house scientists,” one Jones Day brief reads.
DOJ attorneys also argued that EPA’s administrator has considerable discretion in selecting CASAC members, stating that Congress didn’t require CASAC to include any industry representatives, according to the Clean Air Act Amendments of 1977 that established it.
DOJ attorney John Robinson disagreed with that interpretation.
“I don’t think the Census case [Department of Commerce] changed the law on justiciability in any meaningful way,” Robinson said, later disputing that “Physicians for Social Responsibility vs. Wheeler” offered direct precedent as well. “The Administrator, as was his right under the statute, determined not to select them [Cox and Young]. That’s not evidence of unfairness.”
Shumate also argued that the EPA “reconstituted the Committee on the basis of irrelevant and improper factors—the race and sex of the nominees,” citing a staff recommendation memo.
“We did not have this document when we filed our complaint or when we filed our opening brief. We got it five days before we filed our reply brief,” he said.
“Plaintiff emphasized a race and sex discrimination claim here. Plaintiff has not pleaded that claim. Respectfully, there’s no basis in the administrative record for such a claim,” Robinson said. “We’re prepared to address it, but it wasn’t really the subject of briefing.”
Robinson also argued that any requirement to include industry representatives would be “unworkable.”
“If ‘industry’ is entitled to a representative, why not consumers or environmental justice groups? Why stop at ‘industry’ broadly and not also require a representative from the coal, natural gas, and oil industries?” one DOJ brief reads.
Kelly questioned this argument.
“Here we have not one representative from a party that will actually have to comply with any regulations that flow from this. That strikes me as extraordinary,” he said.
Kelly concluded the hearing by noting that the case presented a “not unique, but rare set of circumstances.”
“Both sides are doing your best to apply legal regimes in various ways that, whatever they say, may or may not have been designed ... their fit with this particular type of dispute is at least in question,” he said.
Shumate declined to comment on the record.
An EPA spokesperson told The Epoch Times, “As this is pending litigation, we have nothing to add.”
Department of Justice officials didn’t respond to a request for comment by press time.