Copyright © 2021 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. COMMENTS SAFEGUARDING AGAINST DISTORTIONS OF SCIENTIFIC RESEARCH IN FEDERAL POLICYMAKING by Melissa L . Kelly, Genna Reed, Gretchen T . Goldman, and Jacob M . Carter Melissa L. Kelly is Staff Director and Attorney at the University of California, Irvine School of Law’s Center for Land, Environment, and Natural Resources (CLEANR). Genna Reed is Senior Analyst in the Center for Science and Democracy at the Union of Concerned Scientists (UCS). Gretchen T. Goldman is Research Director of the Center for Science and Democracy at UCS. Jacob M. Carter is a Research Scientist in the Center for Science and Democracy at UCS. he appropriate use of science in policymaking and regulated industries have served as fertile ground for depends upon integrity in scientific research and in the Donald Trump Administration’s unprecedented efforts the ways in which that research is communicated to sideline scientists, defund and disregard research, and Tand applied throughout the policymaking process. Exist- dismantle the institutional means by which science can ing rules and norms concerning conflicts of interest among inform government policy.1 Long-held rules and norms agency leaders, advisors, federal employees, and lawmakers regarding the barriers that should exist between decision- demonstrate an understanding that sound policy decisions makers and industries affected by policy outcomes are require the independence of scientists and the impartial- eroding, pointing toward a need to strengthen how con- ity of regulators. Conflicts of interest introduce the poten- flicts of interest are handled in the federal government. tial for bias and interference with research and regulation, On May 22, 2019, the University of California, Irvine not only undermining agencies’ abilities to develop and School of Law’s Center for Land, Environment, and Natu- implement the best possible science-based policies, but also ral Resources (CLEANR) and the Center for Science and contributing to the erosion of public confidence in both Democracy at the Union of Concerned Scientists (UCS) science and government. convened a roundtable that brought together leading sci- In spite of these enduring concerns, ambiguity regard- entists, scholars, advocates, and policymakers to explore ing what constitutes a conflict of interest in science and potential safeguards to protect scientific research and its policymaking, as well as historically persistent ties between use in federal policymaking.2 The roundtable discussion regulatory agencies, advisory committees, lobbying firms, 1. Emily Berman & Jacob Carter, Scientific Integrity in Federal Policymaking Authors’ Note: The authors would like to thank Michael Under Past and Present Administrations, 13 J. Sci. Pol’y & Governance 1 (2018). Robinson-Dorn, University of California, Irvine School of 2. Participants included Mustafa Santiago Ali (Environmental Justice, Cli- Law clinical professor of law and member of CLEANR’s mate, and Community Revitalization, National Wildlife Federation), Advisory Committee, for his critical role in developing the Jay Austin (Environmental Law Institute), Emily Berman (UCS), Ja- cob Carter (UCS), Joel Clement (Harvard University Belfer Center for May 2019 roundtable and his invaluable input on this Com- Science and International Affairs; UCS), Anita Desikan (UCS), Holly ment. They also thank all the roundtable participants for Doremus (University of California, Berkeley School of Law), Victor B. their meaningful contributions; participants Martha Kinsella, Flatt (University of Houston Law Center), Robert L. Glicksman (George Washington University Law School), Gretchen Goldman (UCS), Shaina Brennan Center for Justice, Sidney Shapiro, Wake Forest Goodman (National Partnership for Women and Families), James Good- University School of Law, and Wendy Wagner, University win (Center for Progressive Reform), Michael Halpern (UCS), Adrienne of Texas, Austin School of Law, for their time and thoughtful Hollis (UCS), Rush Holt (American Association for the Advancement of Science), Peter Jenkins (Public Employees for Environmental Responsibil- comments on this Comment; Gabriel Weil, Climate Leader- ity), Melissa Kelly (University of California, Irvine School of Law), Mar- ship Council, for his contribution as a roundtable participant tha Kinsella (Brennan Center for Justice), Lauren Kurtz (Climate Science and former CLEANR fellow; and University of California, Legal Defense Fund), David Michaels (George Washington University School of Public Health), Amit Narang (Public Citizen), Genna Reed Irvine School of Law student Daniel Kolko and CLEANR re- (UCS), Michael Robinson-Dorn (University of California, Irvine School search assistant Neil Dy for their research support. of Law), Andrew Rosenberg (UCS), Sidney Shapiro (Wake Forest Univer- 51 ELR 10014 ENVIRONMENTAL LAW REPORTER 1-2021 Copyright © 2021 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. focused on agencies tasked with protecting environmen- violated federal ethics requirements when he met with his tal and human health, including the U.S. Environmental former employer about matters he previously worked on— Protection Agency (EPA), the U.S. Department of the directly weakening endangered species protections.7 Interior (DOI), and the National Oceanic and Atmo- Unfortunately, DOI is not unique in this respect. Across spheric Administration (NOAA). Based on the discussions federal agencies under the Trump Administration, con- at that roundtable, CLEANR and UCS offer the follow- flicted appointments and ethics failures have resulted in ing recommendations for the executive branch, the U.S. policy agendas that prioritize industry preferences over the Congress, and federal agencies to better protect against public interest, with very few checks. conflicts of interest, and to secure and advance the role of Historically, presidents have understood that certain science in policymaking. critical positions require specialized skills or expertise. This Comment expands upon the recommendations Although, “[i]n recent years, presidents have increasingly CLEANR and UCS proposed in the September 2020 fact appointed people—often former associates or political sheet, Conflicts of Interest at Federal Agencies: Recom- allies—without the requisite qualifications for impor- mendations for 2021 and Beyond.3 Part I focuses on con- tant positions,” and the Trump Administration has not flict-of-interest recommendations pertaining to political only “embraced candidates who lack relevant qualifica- appointees, Part II on federal advisory committees (FACs), tions,” but even those who are “opposed to the objectives Part III on the scientific peer review process, and Part IV of the office or agency they have been tapped to lead.”8 on oversight and enforcement. Part V concludes. For example, President Trump nominated Sam Clovis as U.S. Department of Agriculture chief scientist despite his lack of a hard science degree, open skepticism of climate I. Political Appointments science, and statement that President Trump’s agricul- ture policy would focus “heavily on trade and regulatory issues, not the impacts of increased heat waves, droughts A. Protect Against the Appointment and and other impacts of rising global temperatures.”9 Most Undue Influence of Individuals With recently, David Legates was hired as NOAA’s deputy Conflicts of Interest assistant secretary of commerce for observation and pre- diction.10 He holds this high-level position at an agency Political appointments during the Trump Administration whose mission is to predict changes in climate, despite his have been fraught with conflicts of interest pertaining to long history of questioning well-founded climate science the specific individuals appointed.4 Appointments for pow- and his affiliation with the Heartland Institute—a climate erful DOI positions, for example, went to individuals who denialist think-tank.11 have previously lobbied for the fossil fuel industry. Former The appointment of unqualified individuals to criti- Interior Secretary Ryan Zinke keynoted a Louisiana Oil cal government positions undermines the public’s faith in and Gas Association luncheon, where he declared, “Our government, and politicizes traditionally nonpartisan gov- government should work for you, the oil and gas industry.”5 ernment functions such as scientific research.12 Stronger, His successor, Interior Secretary David Bernhardt, also enforceable protections are needed to address conflicts of engaged on issues while in office that were part of his port- interest and protect against the improper influence of sci- folio as a lobbyist. For example, before serving as Secretary, entific research and policymaking. CLEANR and UCS Mr. Bernhardt sought to loosen protections for endangered recommend that Congress take the following actions: fish as a lobbyist and lawyer for Westlands Water District in California’s Central Valley.6 These are not isolated exam- ples. DOI’s Inspector General (IG) investigated the actions of Assistant Secretary Douglas Domenech and found he sity School of Law), Patrice Simms (Earthjustice), Ciara Torres-Spelliscy (Stetson University College of Law), Wendy E. Wagner (University of 7. Office of Inspector General, DOI, Investigative Report of Alleged Texas at Austin School of Law), Romany Webb (Columbia Law School Ethics