Featured Case

Clean Air Agency’s Science Panelists Are Not “Regulators For Life”

Brown v. Adams

Contact: Paul J. Beard II or Damien M. Schiff

Status: Hearing on Demurrer continued to June 25, 2010.

Summary:
Established in 1967, the California Air Resources Board (CARB) is the leading clean air agency in California. CARB is headed by an eleven-member board appointed by the governor. Among CARB’s statutory obligations is the regulation of toxic air contaminants. (CARB recently has garnered much publicity and controversy for its regulation of diesel fuel powered engines.)

Under the Health and Safety Code and as part of the regulatory process, CARB is required to consult with a panel of expert scientists known as the Scientific Review Panel (SRP). The SRP must review the scientific basis of CARB’s assessment of the factors for identifying a toxic air contaminant.

The Health and Safety Code provides a very detailed process for the nomination and appointment of SRP members. The Code requires the Panel to be composed of nine members who are “highly qualified and professionally active or engaged in the conduct of scientific research.” These members serve for a term of three years. Five members are appointed by the Secretary of Environmental Protection, two by the Senate Committee on Rules, and two by the Speaker of the Assembly. The Code also specifically provides for the nomination of potential Panel members, as follows:

Members of the panel shall be appointed from a pool of nominees submitted to each appointing body by the President of the University of California. The pool shall include, at a minimum, three nominees for each discipline represented on the panel, and shall include only individuals who hold, or have held, academic or equivalent appointments at universities and their affiliates in California.

Thus, the Code requires, for any person who wishes to serve on the panel, that he first be selected by the U.C. President for the nominee pool, and that he be one of at least three individuals qualified in the discipline for expertise in which he has been nominated to serve. This process applies regardless of whether the nominee previously has served on the Panel.

Based on information posted on CARB’s website, PLF has determined that the majority of currently serving Panel members have held their positions for over a decade. Further, a letter to PLF from the U.C. President’s Office confirms that the U.C. President has not been regularly consulted for a nominee pool and has made no nominations since 2004.

PLF represents a variety of businesses in seeking a court order to compel the appointing authorities to fulfill their legal duty and make new appointments, through the legally prescribed process, where panel members have overstayed their terms of office.