EPA has released its Draft Plan to Study the Potential Impacts of Hydraulic Fracturing on Drinking Water Sources to its Science Advisory Board (SAB) for peer review. Conspicuously missing from inclusion on the 23-member panel are any representatives from the oil and gas industry. The Federal Advisory Committee Act (FACA), which governs the scope and operations of any SAB, requires that the membership of any advisory committee be “fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee.” See 5 U.S.C. § 5(b)(2).

EPA’s SAB guidance also requires that the SAB

“focus on technical issues, not policy issues; risk assessment and engineering issues, not risk management decisions; the adequacy of the scientific foundation on which an Agency position . . . is built, not the position itself.

EPA has assembled an academically well-qualified, but one-sided SAB review panel. The membership potentially runs afoul of section 5 of the FACA. As the comprehensive fracking study moves forward, it will be critical to monitor the SAB’s role to ensure it is in compliance with the FACA and the Agency’s internal rules and guidance governing how the SAB should operate in the context of the Agency’s ultimate decision-making.