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Washington-In the first case to reach a federal appellate court, business and industry are pushing for judicial review of government actions under a federal law with the potential to revolutionize the use of scientific, financial and other data in government regulation. Sometime this summer, the 4th U.S. Circuit Court of Appeals will hear arguments on whether judicial review is available under the Information Quality Act (IQA), a statute heralded by the business community and castigated by environmental, consumer and health and safety groups. The act, which was inserted without debate as a rider into a fiscal year 2001 appropriations bill, requires the Office of Management and Budget and all federal agencies to issue “information quality guidelines” to ensure the “quality, objectivity, utility and integrity” of information disseminated by an agency. And, perhaps most importantly, the act requires each agency to create an administrative mechanism by which people, groups or businesses affected by the information can seek corrections. Business contends that the act and the mechanism are critical to ensuring that government regulation is based on sound science or information. But environmentalists and others counter that the act is intended to thwart rulemaking. If judicial review is available under the IQA, the act will become the vehicle for “Daubertizing” the regulatory process, said Thomas McGarity of the University of Texas School of Law, president of the Center for Progressive Regulation, an IQA critic. McGarity was referring to the Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), in which the high court made federal judges the “gatekeepers” of scientific evidence in federal trials. Judicial review will lead to “ossification” or a “gumming up” of the regulatory process, and judges will be no more successful examining the nitty-gritty of scientific details underlying regulation than they have been in applying Daubert, McGarity said. “I have written about judicial review for all 35 years of my teaching career and I think this is one of the gravest threats to the regulatory process, or at least the rule-making process, that has come down the pike ever,” he said. Without judicial review, federal agencies may not be motivated to do the best possible job in developing information, said administrative and environmental law practitioner Frederick Anderson of the Washington office of McKenna Long & Aldridge. “One of the basic strategies of government is to get information out to influence private behavior,” he said. “So the question then is: How good is the information provided? To give teeth to the information requirement, judicial review is needed.” The lower courts so far have not agreed with Anderson and proponents of judicial review. The case now before the 4th Circuit actually began two years ago when the Salt Institute and the U.S. Chamber of Commerce filed a petition under the IQA challenging information in statements issued by the National Heart, Lung and Blood Institute (NHLBI) that reducing the amount of salt to moderately low levels in the human diet would result in lower blood pressure for most people. The Salt Institute and the chamber claimed that publicly released studies did not support the conclusion for “all” individuals, and they asked the agency to provide additional information from a key study. The NHLBI rejected the petition because, it said, it was not a petition for correction of information, but even if it were, the agency claimed, the data satisfied the data- quality guidelines. After the agency denied appeals, the Chamber and the Salt Institute filed suit in the U.S. District Court for the Eastern District of Virginia. Salt Institute v. Thompson, No. 04-359. Last fall, Judge Gerald B. Lee dismissed the suit after finding that the plaintiffs lacked federal court standing. He also found that there is no private right of action under the IQA and that an agency’s decision to deny a party’s complaint is not subject to judicial review. In his appeal to the 4th Circuit, Reed Rubinstein of the Washington office of Greenberg Traurig, counsel to the Salt Institute and the U.S. Chamber, said the judge “swung and missed” on standing. “When Congress said we had a right to seek and obtain correction under the IQA, the violation of that right by the agency created a direct, concrete, redressable injury for us-we were affected persons.” Congress, Rubinstein argued, used the IQA to fill the gap created when courts held that agency information outside of rule-making was not subject to review under the Administrative Procedure Act as final agency action. On judicial review, he said, “The statute doesn’t say explicitly you are entitled to judicial review. But the basic administrative law rule is unless it’s clear, crystal clear, that Congress intended to foreclose review, review is presumed.” McKenna’s Anderson agreed on the judicial review question, adding, “The act doesn’t speak to judicial review, but neither does the National Environmental Policy Act, which now has about 1,000 judicial decisions.” Keep courts out But Texas’ McGarity said, “If one can take these interlocutory appeals and get judicial review of the quality of the science underlying risk assessments, position papers and other information, there will be no end to it.” Currently there are IQA petitions that, for example, challenge the minutes of a science advisory committee meeting because the challenger said the minutes left out something, said McGarity. That challenge could itself have been challenged under the IQA because it wouldn’t have passed IQA scrutiny either, he added. Win or lose, the 4th Circuit ruling will not be the last word on the IQA, said Rubinstein. “If anything, the issue of data quality is only going to become more important and compelling as time goes on,” he said. “How does government ensure the little nanos don’t run around and kill us all and, at the same time, enjoy the economic benefits associated with that technology? To my mind, data quality is the precursor of a much larger transformation of the way government, science and society interact.”

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