On May 18, 2018, the D.C. Circuit Court of Appeals held that EPA had not adequately reviewed groundwater science and found EPA’s proposal to list the “West Vermont” site in Indianapolis arbitrary and capricious. EPA will have to go back to the drawing board if it wants to list West Vermont on the National Priorities List. GENUINE PARTS COMPANY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, No. 16-1416, Consolidated with No. 16-1418, United States Court of Appeals, District of Columbia Circuit (May 18, 2018).
Courts holding governments feet to the fire on science is proper, and refreshing. For too long, decisions have hidden behind the very deferential ‘arbitrary and capricious’ standard of review under the Federal Administrative Procedures Act (APA) (most states apply the same principles). At West Vermont EPA made one critical mistake – Genuine Parts Company had hired scientists who demonstrated there was a ‘confining layer’ between the alleged contamination source and groundwater used for drinking water supply. Genuine Parts Company raised the issue in comments, but according to the Court the comment was ignored, a cardinal sin under the APA which mandates response to any relevant comment.
Recently EPA announced support for the “Honest and Open New EPA Science Treatment (HONEST) Act.” The idea is to insert greater transparency in scientific bases for EPA decisionmaking. As a biologist and lawyer for government, non-profits, and industry, I’ve seen far too many environmental decisions influenced less by science and more by politics and money. These are highly technical issues deserving of our best available science and full due process and recognition of the right to Petition for redress.
The Courts are to be applauded for underpinning their decision on science, and the message to all government agencies should be that the public expects and deserves open, transparent, and well-supported scientific bases for decisionmaking.
EPA’s National Priorities Listing of the listing of the West Vermont site in Indianapolis overturned – arbitrary and capricious after Genuine Parts Company provided evidence of a confining layer separating a drinking water source from the alleged contamination source. The D.C. Circuit found the HRS score was incorrect for groundwater pathway potential contamination.