Plaintiffs Dr. S. Stanley Young and Dr. Louis Anthony Cox, Jr. challenge the Environmental Protection Agency's (EPA) reconstitution of two advisory committees, alleging that it unlawfully purged members to enable the Biden administration to advance its climate change policies. They claim the reconstituted committees violate the Federal Advisory Committee Act (FACA) by being 'unfairly balanced' and subject to 'inappropriate influence,' and that the EPA breached the Administrative Procedure Act (APA) during this process. Both plaintiffs sought membership on the committees but were not selected, leading to their lawsuit in October 2021 against the EPA, its Administrator, and the committees. They seek a permanent injunction against the committees' activities and an order for proper reconstitution.
The court denied the plaintiffs' motion for a preliminary injunction but reserved judgment on motions for partial summary judgment. It ultimately denied the plaintiffs' motion and granted the defendants’ cross-motion. Since the reconstitution, the committees have met and voted to adopt stricter National Ambient Air Quality Standards, with a proposed rule transmitted to the White House, pending implementation in spring 2023. Summary judgment standards require that a court grants judgment only when there are no genuine disputes over material facts.
Summary judgment may be granted when, favoring the non-movants and making reasonable inferences, no reasonable jury could find in their favor. To overcome summary judgment, a party must provide specific facts beyond the pleadings, such as affidavits, depositions, or admissions, demonstrating a genuine issue for trial. Courts do not assess credibility or weigh evidence; merely having a factual dispute does not negate a well-supported motion for summary judgment. If the evidence is insubstantial or non-probative, summary judgment is appropriate.
In the context of Federal Advisory Committee Act (FACA) claims, the Clean Air Act does not strip the court of jurisdiction over the case. The Clean Air Act mandates that challenges to the Administrator’s regulations be filed in the Court of Appeals for D.C. However, Plaintiffs contend that the action in question involved the reconstitution of a committee under FACA, not the Clean Air Act. The court agrees, clarifying that FACA governs the establishment of advisory committees and that the Administrator's actions were not covered by the Clean Air Act. Previous cases cited by Defendants involved challenges to actions taken under the Clean Air Act itself, unlike the present case.
Regarding the Administrative Procedure Act (APA), Defendants assert that FACA provisions concerning the Committee are nonjusticiable. The APA restricts judicial review of agency actions deemed committed to agency discretion. Two circumstances render agency actions unreviewable: decisions traditionally seen as discretionary and those where statutes provide no applicable law. FACA stipulates that advisory committees must be fairly balanced and free from inappropriate influence, but Defendants argue these requirements are nonjusticiable as they leave agency discretion unbounded and lack enforceable standards for judicial review.
Plaintiffs contend that Circuit precedent and FACA guidelines provide clear standards for the Court to adjudicate the case, asserting that the 'fair balance' provision is justiciable. The Court agrees with Plaintiffs, referencing the divided opinions in the D.C. Circuit’s Public Citizen v. National Advisory Committee on Microbiological Criteria for Foods case regarding the justiciability of the 'fair balance' provision. While Judge Friedman did not directly address justiciability, his decision to adjudicate the merits implies agreement with Judge Edwards that the provision is justiciable. The Court notes that other circuits have supported this view, although some local courts have expressed skepticism about its binding nature.
In Count V, Plaintiffs argue that the Committee's membership violates the 'fair balance' provision due to the absence of an industry representative and a perceived lack of diverse perspectives. Defendants counter that the Committee's scientific and technical nature does not necessitate an industry representative, asserting that a diverse range of technical experts suffices to meet fair balance requirements. The Court sides with Defendants, indicating that the Clean Air Act does not mandate industry representation and that the Administrator has discretion in achieving fair balance among the remaining members. The Committee's role is to provide scientific advice on air quality standards, and its technical mandate allows it to fulfill the fair balance requirement without needing an industry representative who may oppose stricter regulations.
The Clean Air Act assigns the Committee responsibilities that emphasize scientific expertise, including advising the Administrator on areas needing further research for national ambient air quality standards. The Committee's charter aims to review relevant criteria and standards, and both parties acknowledge the Committee's primarily technical and scientific role, with members possessing diverse backgrounds in fields such as inhalation toxicology, respiratory medicine, and biostatistics. This varied expertise meets the requirements of the General Services Administration (GSA) regulations, satisfying the 'fair balance' requirement of the Federal Advisory Committee Act (FACA).
While plaintiffs argue that the Administrator's selection of committee members reflects a lack of diverse viewpoints, particularly an industry representative, the Court distinguishes this case from the precedent set in NAACP, where a committee's exclusively law enforcement membership was deemed unbalanced. The Court finds the current Committee's scientific composition analogous to Cargill, where a similar challenge was dismissed due to the committee's scientific expertise.
Additionally, the plaintiffs claim potential inappropriate influence over the Committee's recommendations due to the presence of members who are principal investigators on EPA grants. They argue that this could lead to a bias in favor of the Agency's agenda. The defendants counter that sufficient safeguards are in place to prevent such influence and assert that challenges to individual members under FACA are not permissible. The Court leans toward the defendants' position, affirming that FACA mandates provisions ensuring the independence of the advisory committee's advice and recommendations, which the current Committee satisfies.
Courts assessing the provision in question prioritize the existence of structural safeguards against inappropriate influence over the specific vulnerabilities of individual committee members. The Court determines that adequate safeguards are present to ensure the Committee's ability to exercise 'independent judgment' for the EPA. Regulations from the Office of Government Ethics (OGE) and the EPA govern the selection of Committee members, prohibiting individuals with bona fide conflicts of interest from serving. OGE guidelines allow grant recipients to participate in general matters, provided no specific benefit arises from their involvement, exemplified by a chemist from a pharmaceutical company being able to serve on a vaccine regulation committee, unlike a university employee advising on their own institution.
The EPA’s Peer Review Handbook supports the notion that scientists awarded EPA grants can offer independent advice on unrelated projects. The EPA has established rules to mitigate conflicts, such as mandatory financial disclosures for committee members. Historically, the EPA has permitted grant recipients to serve on scientific advisory committees, provided their work does not pertain to their grants, and courts have upheld these safeguards under the Federal Advisory Committee Act (FACA).
Although Defendants note a 2017 decision to bar grant recipients from advisory committees was vacated by the D.C. Circuit for lacking justification, this does not imply the current policy is inadequate under FACA. Plaintiffs argue that the presence of grant recipients on the Committee raises concerns of inappropriate influence, citing that five of seven members are principal investigators with substantial funding. However, courts have consistently rejected claims of undue influence solely based on grant receipt, particularly since the EPA is a significant funder of environmental research.
Moreover, Plaintiffs failed to provide evidence linking the Committee’s recommendations on National Ambient Air Quality Standards (NAAQS) to the members' research grants or demonstrating a unique conflict of interest. The mere fact that Committee members receive grants does not inherently violate FACA.
In their APA claim, Plaintiffs allege the Committee's reconstitution was 'procedurally unlawful' and arbitrary. They present three arguments: the EPA did not adequately explain the reconstitution, failed to justify the selection of grant recipients, and did not consider alternatives to reconstitution. Defendants counter that these claims may be nonjusticiable.
Plaintiffs argue that the selection of Committee members is solely at the agency's discretion, which they claim precludes review under the APA. However, the court finds that the APA does allow for review of the Administrator's actions. Citing *Motor Vehicles Manufacturers Association v. State Farm*, Plaintiffs contend the EPA's announcement failed to adequately explain how the reconstituted Committee would comply with FACA. The court counters that there is no requirement for the EPA to specify compliance with FACA at that time, especially since the FACA was not finalized until June 2021, and the EPA's rationale for reconstitution—correcting prior administration decisions—was sufficient.
Plaintiffs also assert that allowing grant holders on the Committee represents a policy shift, but this claim is refuted by the D.C. Circuit's prior ruling that vacated a directive barring such individuals, indicating that considering grant recipients aligns with past EPA practices. Furthermore, the Administrator's decision to completely reconstitute the Committee is justified as a response to irregularities in the previous selection process, and the changes were not as drastic as suggested since two former members were retained.
Regarding the mandamus claim, Plaintiffs argue the Committee is not compliant with the law, but the court states that for mandamus relief, there must be a clear right to relief and no adequate alternative. Since the EPA has not violated FACA or the APA, Plaintiffs lack a clear right to relief and have not demonstrated a lack of adequate remedies. Thus, the claim for mandamus fails.
In conclusion, the court denies Plaintiffs’ motion for partial summary judgment and grants Defendants’ cross-motion.
