News Releases from Headquarters›General Counsel (OGC)

EPA Will Not Appeal Adverse SDNY Decision Regarding October 31, 2017 Federal Advisory Committee Directive

WASHINGTON (June 24, 2020) — The U.S. Environmental Protection Agency (EPA) will not appeal a recent decision of the U.S. District Court for the Southern District of New York (SDNY) vacating and remanding Section 1 of the Agency’s October 31, 2017 directive entitled “Strengthening and Improving Membership on EPA Federal Advisory Committees.”

The court’s decision does not prevent future actions by EPA to regulate the composition of its advisory committees, including policies or regulations governing the participation of committee members who receive grants from EPA. Nor does it call into question EPA’s responsibility to ensure the independence of its committee members or its authority to reverse past policies when supported by a reasoned explanation.

The decision not to appeal the SDNY judgment was made in light of a related decision by the U.S. Court of Appeals for the District of Columbia Circuit issued in April. Based on that subsequent decision, EPA has determined that any blanket prohibition on the participation of EPA grant recipients as special government employees in EPA advisory committees should be promulgated as a supplemental ethics regulation with the concurrence of the Office of Government Ethics.

Because EPA has not promulgated such a regulation, the Agency will continue to follow the relevant policies as they existed before issuance of the 2017 Directive.

Foregoing an appeal of the SDNY decision has no effect on the current composition of the Agency’s federal advisory committees. The court and the plaintiffs agreed that vacating the Directive “would not require the EPA to reopen the composition of any advisory committees.”

Background

Section 1 of the Directive articulated a “requirement that no member of an EPA federal advisory committee be currently in receipt of EPA grant funds.”