Natural Res. Def. Council, Inc. v. Wheeler

367 F.Supp.3d 219

NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiff,

v.Andrew WHEELER, in his official capacity as Administrator of the United States Environmental Protection Agency, Defendant.

18cv613

United States District Court, S.D. New York.

Signed March 21, 2019

Thomas Zimpleman, Natural Resources Defense Council, Washington, DC, Nancy Sharman Marks, Mitchell S. Bernard, Natural Resources Defense Council, Inc., New York, NY, for Plaintiff.

Tomoko Onozawa, U.S. Attorney's Office, New York, NY, Daniel Bensing, James R. Powers, U.S. Department of Justice, Civil Division, Washington, DC, for Defendant.

OPINION & ORDER

WILLIAM H. PAULEY III, Senior United States District Judge

The Natural Resources Defense Council, Inc. (the "NRDC") brings claims under the Administrative Procedure Act (the "APA") to challenge the issuance of a directive by the Administrator of the U.S. Environmental Protection Agency (the "EPA"), which purportedly purges the EPA's advisory committees of scientists from academic and non-profit backgrounds in favor of those from industries the EPA regulates (the "Directive"). The EPA moves, as a threshold matter, to dismiss the NRDC's claims on jurisdictional grounds under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Both parties also move for summary judgment under Rule 56 on the merits of the NRDC's claims. Various states and former EPA personnel have submitted amicus curiae briefs in support of the NRDC's position.

The implications of the Directive are potentially far reaching, and similar challenges have reached at least two other federal courts. Whatever the merits of these challenges, however, this Court's determination is narrow—only that this plaintiff has not demonstrated that it is the proper party to challenge the agency action. The NRDC's lack of Article III standing to bring this action compels the dismissal of its claims without prejudice. Therefore, the EPA's motion to dismiss is granted, and the parties' dueling motions for summary judgment are denied as moot.

BACKGROUND

On October 31, 2017, Scott Pruitt—then the Administrator of the EPA—issued the Directive and an accompanying memorandum regarding the eligibility of individuals to receive competitive research grants from the EPA and to serve on the EPA's nearly two-dozen federal advisory committees (the "Memorandum").¹ These advisory committees provide expert and technical advice as well as recommendations to the EPA. At its core, the challenged portion of the Directive prevents those who have received an EPA research grant from simultaneously serving on an advisory committee. According to the NRDC, the Directive—under the guise of promoting independence and removing financial conflicts of interest—functionally targets qualified scientists from academic, non-profit, and other independent institutions. The NRDC claims that the Directive in effect serves as a pretext to skew representation on the advisory committees in favor of individuals employed or funded by industries that the EPA regulates.

I. Statutory and Regulatory Framework

Federal advisory committees are bodies established by Congress, the President, or federal agency heads to provide expert advice and recommendations on various issues. As relevant here, the EPA relies on approximately two dozen such committees to advise on a broad range of environmental issues and provide peer review of the science it uses. (Amended Complaint, ECF No. 13 ("Compl."), ¶¶ 2-3, 21-22.)

The Federal Advisory Committee Act of 1972 ("FACA") governs the establishment, management, oversight, and operation of federal advisory committees. See 5 U.S.C. App. § 1 et seq.; accord 41 C.F.R. § 102-3.10. Under FACA and implementing regulations promulgated by the General Services Administration, the membership of advisory committees must be "fairly balanced in terms of the points of view represented and the functions to be performed" by the committee. 5 U.S.C. App. § 5(b)(2); accord 41 C.F.R. § 102-3.30(c). Though neither the statutory nor regulatory provisions flesh out the contours of what it means to be "fairly balanced," regulatory guidance clarifies that the composition of an advisory committee will depend on factors such as the following:

(i) The advisory committee's mission; (ii) The geographic, ethnic, social, economic, or scientific impact of the advisory committee's recommendations; (iii) The types of specific perspectives required, for example, such as those of consumers, technical experts, the public at-large, academia, business, or other sectors; (iv) The need to obtain divergent points of view on the issues before the advisory committee; and (v) The relevance of State, local, or tribal governments to the development of the advisory committee's recommendations.

41 C.F.R. part 102-3 subpart B App'x. In addition, the advice and recommendations of the committee must not be "inappropriately influenced by the appointing authority or by any special interest." 5 U.S.C. App. § 5(b)(3); see 41 C.F.R. § 102-3.105 (requiring each agency head to develop procedures to this end).

FACA does not specify the manner in which advisory committee members should be appointed. Its implementing regulations provide only that advisory committee members "serve at the pleasure of," and membership terms remain "at the sole discretion of," the appointing authority, unless "otherwise provided by statute, Presidential directive, or other establishment authority." 41 C.F.R. § 102-3.130(a) ; accord 41 C.F.R. part 102-3 subpart C App'x (observing that each agency head "may specify those policies and procedures, consistent with the Act and this part, or other specific authorizing statute, governing the appointment" of advisory committee members). Similarly, FACA and its implementing regulations do not set forth any specific membership or eligibility requirements.

On the other hand, the statutes that establish some of the EPA advisory committees set forth membership requirements in varying degrees of granularity. See, e.g., 42 U.S.C. § 4365(b) (requiring members of the Science Advisory Board to be "qualified by education, training, and experience to evaluate scientific and technical information on matters referred to the Board"); 42 U.S.C. § 7409(d)(2)(A) (mandating that the Clean Air Scientific Advisory Council be "composed of seven members including at least one member of the National Academy of Sciences, one physician, and one person representing State air pollution control agencies"); 7 U.S.C. § 136w(d)(1) (requiring the Federal Insecticide, Fungicide, and Rodenticide Act Science Advisory Panel to "consist of 7 members appointed by the [EPA] Administrator from a list of 12 nominees, 6 nominated by the National Institutes of Health and 6 by the National Science Foundation," to be "selected on the basis of their professional qualifications to assess the effects of the impact of pesticides on health and the environment"); 15 U.S.C. § 2625(o)(3) (providing that the Science Advisory Committee on Chemicals must be "composed of representatives of such science, government, labor, public health, public interest, animal protection, industry, and other groups as the [EPA] Administrator deems to be advisable, including representatives that have specific scientific experience in the relationship of chemical exposures to women, children, and other potentially exposed or susceptible subpopulations").

II. The Directive

In broad strokes, the Directive—which neither party disputes was issued without notice and comment—proclaimed four new principles for the EPA to apply in establishing the membership of its advisory committees. These principles are aimed toward "strengthen[ing] and improv[ing] the independence, diversity and breadth of participation on EPA federal advisory committees." (Compl., Ex. A (the "Directive").) As relevant here, NRDC challenges the portion of the Directive that purports to prohibit simultaneous receipt of EPA grants and service on advisory committees.² That portion provides as follows:

1. Strengthen Member Independence: Members shall be independent from EPA, which shall include a requirement that no member of an EPA federal advisory committee be currently in receipt of EPA grants, either as principal investigator or co-investigator, or in a position that otherwise would reap substantial direct benefit from an EPA grant. This principle shall not apply to state, tribal or local government agency recipients of EPA grants.

(Directive.)

In addition to this mandatory principle, the Directive also articulates three aspirational principles—namely, that "committee balance should reflect prominent participation from state, tribal and local government," that "membership should be balanced with individuals from different states and EPA regions" (especially historically unrepresented or underrepresented ones), and that "membership should be rotated regularly." Finally, the Directive contains two disclaimers. First, it states that it "is intended to improve the internal management of EPA" and disavows the creation of any "right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, EPA, its officers or employees, or any other person." Second, the Directive reserves to the EPA administrator the discretion to depart from the principles it announces.

The Memorandum purports to explain the principles underlying the Directive. (Compl., Ex. B ("Memorandum"), at 2.) As relevant to the challenged portion of the Directive, its prefatory language reaffirms FACA's "fair balance" requirement, the importance of qualified candidates, and the need for candidates to be "independent from the Agency," to "avoid any conflicts of interest within the scope of their review," and to be "fully committed to objectively serving the Agency and public." (Memorandum, at 2.) This language also explains that the other three principles, which generally seek to broaden the diversity of advisory committee...