Natural Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency

438 F.Supp.3d 220

NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiff,

v.U.S. ENVIRONMENTAL PROTECTION AGENCY and Andrew Wheeler, in his official capacity as Administrator of the Environmental Protection Agency, Defendants.

19cv5174 (DLC)

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

Signed February 10, 2020

For plaintiff: Vivian H.W. Wang, Natural Resources Defense Council, 40 West 20th St., Fl. 11, New York, NY 10011, (212) 727-4477, Thomas Zimpleman, Natural Resources Defense Council, 1125 15th St. N.W., Suite 300, Washington, D.C. 20005, (202) 513-6244.

For defendants: Tomoko Onozawa, U.S. Attorney's Office S.D.N.Y., 86 Chambers St., Fl. 3, New York, NY 10007, (212) 637-2721.

OPINION AND ORDER

DENISE COTE, District Judge:

This action concerns a directive of the U.S. Environmental Protection Agency (the "EPA") providing, in part, that "no member of an EPA federal advisory committee be currently in receipt of EPA grants" (hereinafter the "Directive"). On June 3, 2019, the Natural Resources Defense Council, Inc. ("NRDC") filed this action, which primarily alleges that the Directive is arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. §§ 701 - 706 ("APA"), and was issued without complying with the APA's notice and comment requirements. The EPA has moved to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. P., or in the alternative, for summary judgment.¹ The NRDC has cross-moved for summary judgment. For the following reasons, the NRDC's motion for summary judgment is granted.

Background

The following facts are taken from the administrative record and the parties' submissions.

I. Federal Advisory Committees

To aid its decision-making in core areas of human health and environmental protection, the EPA uses twenty-two federal advisory committees that provide guidance on a range of environmental and health issues. Federal advisory committees may be established by statute, the President, or federal agency heads; eight of the EPA's twenty-two federal advisory committees were created by statute. 5 U.S.C. App. II § 5(c).

A. Statutory and Regulatory Framework

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. II §§ 1 et seq. The General Services Administration ("GSA") is the agency tasked with prescribing regulatory guidelines for federal advisory committees, including ethics requirements. 5 U.S.C. App. II § 7(c).

FACA requires that, among other things, any

legislation establishing, or authorizing the establishment of any advisory committee, ... shall ... (2) require the membership of the advisory committee to be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee; [and] (3) contain appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee's independent judgment.

5 U.S.C. App. II § 5(b)(2), (b)(3) (emphasis supplied). By regulation, the composition of an advisory committee depends on the following factors:

(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. § 102-3, Subpt. B, App. A. Additionally, the "advice and recommendations of the advisory committee" must "not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee's independent judgment." 5 U.S.C. App. II § 5(b)(3). FACA's implementing regulations require that agency heads must "[d]evelop procedures" to this end. 41 C.F.R. § 102-3.105. The regulations also provide that "advisory committee members serve at the pleasure of," and "[m]embership terms are at the sole discretion of," the appointing authority, "[u]nless otherwise provided by statute, Presidential directive, or other establishment authority." 41 C.F.R § 102-3.130.

Agency heads are required to "[a]ssure that the interests and affiliations of advisory committee members are reviewed for conformance with applicable conflict of interest statutes, regulations issued by the U.S. Office of Government Ethics (OGE) including any supplemental agency requirements, and other Federal ethics rules."² 41 C.F.R. § 102-3.105(h). OGE regulations provide that an advisory committee member may not work on a "particular matter" that has a "direct and predictable effect" on a member's financial interest, while clarifying that a "particular matter" does not refer to "broad policy options that are directed to the interests of a large and diverse group of persons." 5 C.F.R. § 2635.402(a), (b)(3). Individuals who violate this regulation are subject to criminal and civil sanctions under 18 U.S.C. § 216. 18 U.S.C. § 208(a).

As noted, Congress has established eight of the federal advisory committees of the EPA. They are: the Clean Air Scientific Advisory Committee ("CASAC"), the Science Advisory Board ("SAB"), the Federal Insecticide, Fungicide, and Rodenticide Act Scientific Advisory Panel ("FIFRA SAP"), the Hazardous Waste Electronic Manifest System Advisory Board ("e-Manifest Board"), the Human Studies Review Board ("HSRB"), the National Drinking Water Advisory Council ("NDWAC"), the National Environmental Education Advisory Council ("NEEAC"), and the Scientific Advisory Committee on Chemicals ("SACC").³

The statute establishing CASAC requires that the committee 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." 42 U.S.C. § 7409(d)(2)(A). The statute establishing SAB provides that "each member of the Board shall be qualified by education, training, and experience to evaluate scientific and technical information on matters referred to the Board under this section." 42 U.S.C. § 4365(b). The statute establishing FIFRA SAP requires that the committee "consist of 7 members appointed by the [EPA] Administrator from a list of 12 nominees, 6 nominated by the National Institute of Health and 6 by the National Science Foundation," that are to be "selected on the basis of their professional qualifications to assess the effects of the impact of pesticides on health and the environment." 7 U.S.C. § 136w(d)(1). The statute establishing the e-Manifest Board requires that the committee be composed of nine members, including: the Administrator or his designee; at least two individuals with "expertise in information technology[;]" at least three individuals with "experience in using or [who] represent users of the manifest system to track the transportation of hazardous waste under this subchapter (or an equivalent State program)[;]" and at least three individuals who are "State representative[s] responsible for processing those manifests." 42 U.S.C. § 6939g(f). The statute establishing the NDWAC requires that the committee "consist of fifteen members," five of whom "shall be appointed from the general public[;]" five of whom "shall be appointed from appropriate State and local agencies concerned with water hygiene and public water supply[;]" and five of whom "shall be appointed from representatives of private organizations or groups demonstrating an active interest in the field of water hygiene and public water supply, of which two such members shall be associated with small, rural public water systems." 42 U.S.C. § 300j-5(a). The statute establishing the NEEAC requires that the committee consist of eleven members, two of whom "represent primary and secondary education (one of whom shall be a classroom teacher);" two of whom "represent colleges and universities;" two of whom "represent not-for-profit organizations involved in environmental education;" two of whom "represent State departments of education and natural resources;" two of whom "represent business and industry;" and one of whom "represent[s] senior Americans." 20 U.S.C. § 5508(b)(2).

B. Membership Selection and Ethics Review

Before the issuance of the Directive, receipt of an EPA grant did not disqualify a scientist from membership on an EPA advisory committee. All prospective members of EPA federal advisory committees, however, were required to complete and submit financial disclosure forms, which were evaluated as part of the membership selection process. EPA ethics officials also would review this information for compliance with federal ethics laws and regulations. Once a candidate was appointed to an EPA federal advisory committee, the SAB Staff Office and agency ethics officials would review each individual activity in which the committee member engaged for possible conflicts of interest and the appearance of a lack of impartiality.

In accordance with OGE regulations prohibiting committee members from working on a "particular matter" that affected their financial interests, 41 U.S.C. § 102 -3.105(h), committee members were forbidden from participating in matters that would affect a project for which they had received an EPA grant. When committees considered specific research conducted by a member of the committee, the member would recuse him or herself or would be recused by a designated federal officer. Recusals were noted in public minutes for committee meetings.

II. EPA Grants

The EPA funds and administers research grants to independent institutions in order to further the...