EPA Faces A New Raft Of New Data Quality Act Petitions Thanks To - GT?
The ever-useful Inside EPA reports, in a story titled "EPA Petitioned To Defend Data Underlying Key Regulatory Decisions" (subscription required), that numerous associations, businesses, and environmental advocacy groups have filed numerous petitions under the Data Quality Act (aka the "Information Quality Act") for correction of information disseminated by EPA and other administrative agencies in the wake of a recent D.C. Circuit case titled Prime Time v. Vilsack. [Full disclosure - I was Prime Time's counsel and argued the case before the Court of Appeals] The DQA directs the Office of Management and Budget (OMB) to issue government-wide guidelines that "provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies". Essentially, OMB mandates that agencies show their work, and base their statements, directives, and information on good, methodologically sound science and statistics. The guidelines may be found here.
Contrary to the arguments made by both the Bush and Obama Administrations, Prime Time strongly suggests that agency actions (or lack thereof) are judicially reviewable. Opponents of the DQA, argue, as the Justice Department did in Prime Time, that a decision by the Fourth Circuit in a case titled Salt Institute v. Leavitt means the DQA creates no judicially enforceable rights. [More full disclosure - I was also Salt Institute's counsel.] The Fourth Circuit, however, ignored the DQA's plain language requiring agencies establish administrative mechanisms allowing "affected persons to seek and obtain correction of information maintained and disseminated by the agency that does not comply with the law." By contrast, the D.C. Circuit gave effect to the DQA's plain language and thus refused to cite or adopt the Fourth Circuit's ruling.
On its face, judicial review of agency action on DQA petitions would seem to be very a very positive and useful thing, because it forces administrative agencies to take care and be sure their information and actions are based on sound, transparent, and defensible science and not politically skewed agendas. Yet, those who favor activist agencies and extensive regulations are typically not DQA fans. Some have even argued that information quality requirements are the "nemesis" of regulation. This is hard to understand, for one would think that a law aimed at ensuring agencies get it right would garner support across the ideological divide, particularly with the federal government regulating so extensively. But there it is.
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