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Byrd v. EPA--A Setback to Openness, Accountability, and Integrity in Federal Policymaking

December 2000

Citation: ELR 11181

Author: Thomas R. Bartman

This Dialogue discusses the recent decision in Byrd v. EPA1 regarding the scope and application of the Federal Advisory Committee Act (FACA).2 According to the court's opinion, the U.S. Environmental Protection Agency (EPA) and other federal agencies that use a contractor to establish a committee to provide an agency advice are essentially exempt from compliance with FACA requirements; they need not make the public aware of advisory committee meetings, tolerate public attendance at those meetings, or allow citizen access to documents considered by the committee. This judicially created exemption has the potential to undercut not only the public openness objective of FACA, but also the independence of peer review committees, which are increasingly used by agencies for advice and approval of science-based agency decisions.

Mr. Bartman is a vice president in the Washington, D.C. law firm of Shapiro, Lifschitz & Schram, P.C. He received a B.A. degree from Haverford College (1975), a M.Phil. degree from Yale University (1979), and a law degree from the University of Virginia (1982). He argued the case that is the subject of this Dialogue.

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