EPA Muzzles Advisory Board Scientists

August 13, 2014

A memo from EPA's chief of staff makes it clear: members of the agency's many science advisory panels are not to talk to the news media or Congress without permission.

That "don't talk" memo was presented at a closed-door July 24, 2014, portion of EPA's Science Advisory Board (SAB) meeting, and it was not publicly disclosed at the time. Standard SAB procedure follows federal law in requiring publication of materials distributed to SAB members in advance of a meeting.

The memo, from Chief of Staff Gwendolyn Keyes Fleming, was dated April 4, 2014, and was directed to Christopher Zarba, director of the Office of the Science Advisory Board and David Allen, chairman of the SAB. It said: "Committee members themselves and FACA Committees as a whole, should refrain from directly responding to these external requests related to their efforts to advise the agency...." Attached to the memo was an "EPA Policy" restricting communications between Federal Advisory Committee Act (FACA) committee members and parties outside EPA.

The "don't talk" policy appeared to be a violation of the spirit, if not the letter, of the Government in the Sunshine Act and the Federal Advisory Committee Act, which are aimed at public disclosure and transparency around the science on which EPA bases its decisions. It would also appear to be at odds with EPA's Scientific Integrity Policy, which asserts "EPA’s longstanding commitment to the timely and unfiltered dissemination of its scientific information uncompromised by political or other interference."

Revelation of the "don't talk" policy August 12, 2014, was met the same day with a letter of protest to EPA Administrator Gina McCarthy from a number of journalism and science groups. The groups included the Society of Environmental Journalists, the Society of Professional Journalists, the Reporters Committee for Freedom of the Press, Investigative Reporters and Editors, the Union of Concerned Scientists' Center for Science and Democracy, the American Geophysical Union, and the Society for Conservation Biology.

The groups urged McCarthy "to clarify that members of the EPA Science Advisory Board (SAB) and the twenty other EPA science advisory committees have the right and are encouraged to speak to the public and the press about any scientific issues, including those before these committees, in a personal capacity without prior authorization from the agency."

"The EPA wants to control what information the public receives about crucial issues affecting Americans' health and well-being," said Society of Professional Journalists (SPJ) President David Cuillier. "The people are entitled to get this information unfiltered from scientists, not spoon-fed by government spin doctors who might mislead and hide information for political reasons or to muzzle criticism."

"An EPA spokeswoman," the Associated Press reported, "said there are no constraints on members fielding requests in a personal or professional capacity. She said the memo was designed to assure transparency."

The EPA spokeswoman's statement suggested the Agency was trying to have it both ways — claiming no constraints on speech at the same time as issuing policies constraining speech. Those contradictions are embodied in the agency's Scientific Integrity Policy itself, which encourages press-office permissions for interviews and press-office "minders" at interviews even as it espouses "unfiltered" information.

Fleming's "don't talk" memo was published via a blind or orphan link on EPA's web server — meaning the web address itself was not publicly disclosed and thus the document could not be found by anyone who had not already been given its exact location.

The memo came at a time of growing pressure from SEJ and other journalism groups on the Obama administration to do away with the minders-and-permissions interview policies at many government agencies beyond EPA.

SEJ was among the 39 journalism groups who had protested in a July 8, 2014, letter to President Obama.

EPA's circling of the wagons at the SAB is partly a response to growing attacks by Republicans in Congress, who question EPA's scientific basis for the many regulatory decisions they don't like. Republicans have tried to pick apart some of the scientific positions arrived at by the SAB.

But the implications of the "don't talk" policy reach far beyond any immediate political crisis. The SAB is just one of a large and complex array of science advisory panels talking to EPA, and the policies and procedures for the SAB often apply to these other panels as well. The speech constraints on SAB members only reinforce constraints on scientists directly employed to do research at the agency.

The "don't talk" policy also asserts the control of EPA's politically appointed leaders well beyond EPA's own employees. Most members of EPA scientific advisory panels are recognized outside experts who may typically be employed full-time somewhere else — for example, at a research university. Because they are often paid or reimbursed for time and expenses put toward EPA's FACA committees, they have the status of "special government employees." Fleming's April 4 memo strengthens previous assertions that this status gives EPA unfettered control over what SAB members do.

Decades of federal law and practice have asserted the independence of FACA committees — including the FACA itself. FACA says the advice of such committees should be "objective and accessible to the public." But the same law also requires the executive branch to supervise the FACA committees. EPA, in its "don't talk" memo, asserts its authority for "exercising control and supervision" over its FACA committees.