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WASHINGTON — The National Institutes of Health has said often that people who eat a lot of salty food are at risk for high blood pressure. The NIH has urged Americans to cut back on their sodium intake. Not surprisingly, those pronouncements don’t sit well with the Salt Institute, a trade group representing the nation’s salt producers. So the institute is taking a novel approach: It is trying to force the NIH to publish all its data on salt and hypertension, with the hopes of eventually compelling the agency to delete from its Web site any information that can’t be proved scientifically accurate. In other words, the institute plans an attack on the government’s data — rather than a more typical challenge to an agency regulation. In its unusual quest, the industry is taking advantage of a new and arcane law known as the Data Quality Act. And it is teeing up a crucial test case. In the next few weeks, the U.S. Chamber of Commerce and the Salt Institute plan to ask a federal judge to order the NIH to comply with the 3-year-old statute. The lawsuit could eventually change the face of administrative law and give opponents of federal regulation a sweeping new tool to hold agencies at bay. “I think this statute will be upheld as enforceable in court. The arguments against it don’t stand scrutiny,” says Christopher Horner, a senior fellow at the Competitive Enterprise Institute who filed the first lawsuit based on the Data Quality Act, or DQA. “And at that point, you’ve got a new sheriff in town.” The Chamber calls the act, which is just a few lines long and was passed with little debate as part of an appropriations bill in 2000, “the most significant change to the federal rulemaking process since the Administrative Procedure Act was enacted more than 50 years ago.” The DQA, which went into effect just over a year ago, requires federal agencies to “ensure and maximize” the “quality, objectivity, utility, and integrity” of the information they disseminate. Any party that is affected by federal data has the right to ask the agency to “correct” the information. The Salt Institute, to take one example, believes that some of the data in large-scale NIH-funded studies linking salt intake to hypertension are flawed. It says these data fail to meet the standards of the DQA. The faulty information, it says, will cause Americans to buy less salt at the supermarket, unfairly harming the industry. But while business sees in the law a flexible new way to challenge regulations — especially in the safety, health and environmental areas — liberal public interest advocates flatly reject this view. They say Congress was simply asking agencies to make sure that they use valid evidence rather than “junk science.” “If the law is understood the way some advocates want it to be construed, it would interfere with the agencies’ ability to do their job,” says Georgetown University Law Center professor David Vladeck, a former head of the Public Citizen Litigation Group. Says Sean Moulton, a policy analyst at OMB Watch, who has studied the DQA: “Congress saw this as a benign rider designed simply to ensure that the government makes rules based on high-quality data. But it soon became clear that the regulated community was going to use this law as yet another avenue to influence the debate. If they could control the information, after all, they could influence the rule itself.” Although business has attempted to use the data act to reduce its regulatory burden, the business-friendly Bush administration has not taken industry’s side. According to information compiled by OMB Watch, agencies have turned aside almost all of the approximately 30 petitions filed under the act. Liberals’ original fears after passage of the Data Quality Act that the government would fold its tents and agree to industry requests for correction of data have not been borne out. And some conservatives are downright angry. Horner of the Competitive Enterprise Institute, in a scathing Oct. 20 op-ed piece published on Opinioneditorials.com, a conservative Web site, referred to the president as “George W. AlGore” and said the administration “has thwarted every attempt by conservatives” to use the DQA. Horner wrote that the administration is trying to destroy a law that is “the Republican Congress’ sole significant regulatory reform achievement.” Says Horner: “If the administration’s position is upheld, they will unleash any bureaucrat to regulate as he pleases.” In contrast, Moulton of OMB Watch says he has been “fairly pleased by the agencies’ responses.” “They have been well-thought-out,” says Moulton. “The agencies have protected their mission.” The advocacy groups supporting broad use of the DQA to challenge what they say is capricious regulation blame the career bureaucracies at places like the Environmental Protection Agency and the U.S. Forest Service for the fact that they have mostly struck out. “The president, after all, has only a limited number of people who can change standard agency policy,” says William Kovacs, a vice president at the U.S. Chamber of Commerce. “So the agencies will always tell you that they won’t disclose any data, and they’ll force you into litigation.” Kovacs says that as soon as the National Heart, Lung, and Blood Institute — the NIH component that supervised a major study of salt in the diet — issues a final denial of the Salt Institute’s petition under the DQA, he will immediately file suit in the U.S. District Court for the District of Columbia. Kovacs says it was not easy to find the right test case. “We searched long and hard for a set of facts that include influential scientific data, in a nonpolitical context,” says Kovacs. “If the data [on hypertension] is wrong, we shouldn’t be scaring people with data that’s incorrect.” Advocates on both sides agree that the most important undecided issue on the DQA is whether Congress wanted an agency’s denial of a request for “correction” of scientific data to be reviewable by the federal courts. The law itself does not specify or give any indication either way. After all, agencies that have the last word on correcting their own data are likely to do exactly what the Bush administration agencies have done so far: Just say no. Conservatives and industry groups say this cannot be the law. “It’s pretty clear that there is judicial review,” says Reed Rubinstein, who is working with Kovacs on the Salt Institute challenge. “Not to provide a remedy if the agency says no — that doesn’t make sense,” says Rubinstein, of counsel at the D.C. office of Greenberg Traurig. “The whole exercise would be meaningless.” Moulton says judicial review “would be a very negative development.” “The other side could tie up a regulation in court and delay it for months, if not years,” Moulton says. “Delay can mean a good deal for an industry, and can also cause considerable harm to those who suffer from the consequences of the activity in question.” Georgetown’s Vladeck says that in most cases, opponents of a proposed rule can file their objections to the quality of government data as part of an ordinary challenge to a final rule in federal court, so there is no reason to make a DQA determination reviewable. When no actual rule is at issue, Vladeck says, a court ought to find that the court lacks jurisdiction or that the plaintiff doesn’t have standing to pursue the claim. Some argue as well that the DQA should be viewed as an amendment to the federal Paperwork Reduction Act, which Congress specifically declared was not reviewable. The text of the data act says it is “in fulfillment of the purposes and provisions” of the Paperwork Reduction Act.” Hence, the DQA is not reviewable either, some say. Richard Pierce, an administrative law professor at the George Washington University Law School who has lectured on the DQA, says he can only give “a firm maybe” on the reviewability issue, which he says is a close call. The salt case would not be the first in which a U.S. district court was asked to review an agency’s determination under the data act. On Aug. 6, the Competitive Enterprise Institute filed a case in the U.S. District Court for the District of Columbia against the White House Office of Science and Technology Policy, challenging that office’s report on global climate change. Judge Richard Leon, who was assigned the case, never got a chance to rule on whether judicial review is permitted under the DQA. On Nov. 6, the Competitive Enterprise Institute and the government settled their dispute, with the institute withdrawing its complaint and the White House office agreeing to make a small change on its Web site. The Web site now says that the climate-change assessment was produced by an advisory committee and was not subjected to the guidelines under the DQA. “We stepped aside to let someone else go forward [with the salt case],” says Horner. “But we will be back, and we will be right behind them. We want to take the junk climate science to trial.” Jonathan Groner is editor at large at Legal Times , a Recorder affiliate in Washington, D.C.

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