Flue-Cured Tobacco v. U.S.E.P.A.

• Decision Date: 11 December 2002
• Docket Number: No. 98-2473.,No. 98-2407.,98-2407.,98-2473.
• Citation: 313 F.3d 852
• Parties: FLUE-CURED TOBACCO COOPERATIVE STABILIZATION CORPORATION; Universal Leaf Tobacco Company, Incorporated; Philip Morris, Incorporated; RJ Reynolds Tobacco Company; Gallins Vending Company, Plaintiffs-Appellees, and Council for Burley Tobacco, Incorporated; Brown & Williamson Tobacco Corporation, Plaintiffs, v. The UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Carol M. Browner, Administrator, Environmental Protection Agency, Defendants-Appellants, Public Citizen; American Heart Association; American Cancer Society; American College of Chest Physicians; American College of Preventive Medicine; National Center for Tobacco-Free Kids; Washington Legal Foundation, Amici Curiae, and American Public Health Association; American Lung Association, Movants. Flue-Cured Tobacco Cooperative Stabilization Corporation; Council For Burley Tobacco, Incorporated; Universal Leaf Tobacco Company, Incorporated; Philip Morris, Incorporated; RJ Reynolds Tobacco Company; Gallins Vending Company; Brown & Williamson Tobacco Corporation, Plaintiffs-Appellants, v. The United States Environmental Protection Agency; Carol M. Browner, Administrator, Environmental Protection Agency, Defendants-Appellees, Public Citizen; American Heart Association; American Cancer Society; American College of Chest Physicians; American College Preventive Medicine; National Center for Tobacco-Free Kids; Washington Legal Foundation, Amici Curiae, and American Public Health Association; American Lung Association, Movants.
• Court: U.S. Court of Appeals — Fourth Circuit

313 F.3d 852

FLUE-CURED TOBACCO COOPERATIVE STABILIZATION CORPORATION; Universal Leaf Tobacco Company, Incorporated; Philip Morris, Incorporated; RJ Reynolds Tobacco Company; Gallins Vending Company, Plaintiffs-Appellees, and Council for Burley Tobacco, Incorporated; Brown & Williamson Tobacco Corporation, Plaintiffs, v. The UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Carol M. Browner, Administrator, Environmental Protection Agency, Defendants-Appellants Public Citizen; American Heart Association; American Cancer Society; American College of Chest Physicians; American College of Preventive Medicine; National Center for Tobacco-Free Kids; Washington Legal Foundation, Amici Curiae, and American Public Health Association; American Lung Association, Movants.

Flue-Cured Tobacco Cooperative Stabilization Corporation; Council For Burley Tobacco, Incorporated; Universal Leaf Tobacco Company, Incorporated; Philip Morris, Incorporated; RJ Reynolds Tobacco Company; Gallins Vending Company; Brown & Williamson Tobacco Corporation, Plaintiffs-Appellants, v. The United States Environmental Protection Agency; Carol M. Browner, Administrator, Environmental Protection Agency, Defendants-Appellees Public Citizen; American Heart Association; American Cancer Society; American College of Chest Physicians; American College Preventive Medicine; National Center for Tobacco-Free Kids; Washington Legal Foundation, Amici Curiae, and American Public Health Association; American Lung Association, Movants.

No. 98-2407.

No. 98-2473.

United States Court of Appeals, Fourth Circuit.

Argued June 7, 1999.

Decided December 11, 2002.

ARGUED:

David Carlisle Shilton, United States Department of Justice, Washington, D.C., for Appellants. Murray Richard Garnick, Arnold & Porter, Washington, D.C., for Appellees.

ON BRIEF:

Lois J. Schiffer, Assistant Attorney General, Environment & Natural Resources Division, Alice L. Mattice, Greer S. Goldman, United States Department of Justice, Washington D.C.; John W. Stone, Jr., Assistant United States Attorney, Greensboro, North Carolina; Gregory B. Foote, Steven Silverman, Environmental Protection Agency, Washington, D.C., for Appellants. Thomas Davis Sydnor, II, Arnold & Porter, Washington, D.C.; Douglas W. Davis, Hunton & Williams, Richmond, Virginia, for Appellees. Colette G. Matzzie, David C. Vladeck, Alan B. Morrison, Public Citizen Litigation Group, Washington, D.C., for Amici Curiae Public Citizen, et al. Daniel J. Popeo, Richard A. Samp, Washington Legal Foundation, Washington, D.C., for Amicus Curiae Foundation.

Before WIDENER and MOTZ, Circuit Judges, and HOWARD, United States District Judge for the Eastern District of North Carolina, sitting by designation.

Vacated and remanded by published opinion. Judge WIDENER wrote the opinion, in which Judge DIANA GRIBBON MOTZ and Judge HOWARD concurred.

OPINION

WIDENER, Circuit Judge.

This case involves a challenge to the Environmental Protection Agency's (EPA) 1993 Report that classified environmental tobacco smoke¹ as a known human carcinogen. On appeal, EPA presents five arguments challenging the district court's decision that EPA violated its statutory obligations under the Radon Gas and Indoor Air Quality Research Act (Radon Act), Pub.L. No. 99-499, §§ 401-405, 100 Stat. 1758 (reprinted in 42 U.S.C. § 7401 note).² First, EPA argues that the district court incorrectly held that the Report was reviewable final agency action under the Administrative Procedure Act (APA), 5 U.S.C. §§ 702, 704. Second, EPA contends the district court erroneously concluded that plaintiffs — Flue-Cured Tobacco Cooperative Stabilization Corporation, Council for Burley Tobacco, Universal Leaf Tobacco Company, Phillip Morris Incorporated, R.J. Reynolds Tobacco Company, and Gallins Vending Company (collectively plaintiffs) — had proper standing to challenge EPA's Report. Third, EPA contends that it complied with section 403(c) of the Radon Act which required, among other things, that EPA appoint an industry representative to serve on an advisory group during EPA's research program regarding secondhand smoke. Fourth, EPA argues that even if it violated the Radon Act's mandate to establish properly an advisory committee for consultation, that error was nonetheless harmless and not grounds for vacating EPA's Report. Finally, EPA contends that the district court improperly exceeded the scope of judicial review of agency action by engaging in an intrusive review of the scientific and methodological judgments underlying EPA's conclusions in the Report.

Because the Report is not reviewable agency action under the APA, we vacate the judgment of the district court and remand for dismissal.³

I.

Congress enacted the Radon Act in 1986 as part of Title IV of the Superfund Amendments and Reauthorization Act of 1986. The Radon Act was based on Congress's finding that "exposure to naturally occurring radon and indoor air pollutants poses public health risk[s]" and that "[f]ederal radon and indoor air pollutant research programs are fragmented and underfunded," and thus a need existed for the development of an "information base concerning exposure to radon and indoor air pollutants." § 402, 100 Stat. at 1758.

The Radon Act required EPA's Administrator to establish a research program designed to collect data on indoor air quality, coordinate public and private research and development efforts, and to evaluate potential government actions to reduce health risks associated with indoor air quality problems. § 403(a), 100 Stat. at 1758-59.⁴ The statute required several elements of the research program that included: research and development concerning the identification, characterization, and monitoring of indoor air pollution; research relating to indoor air pollution's effects on human health; and public dissemination of the findings of the research program. § 403(b), 100 Stat. at 1759.⁵ The Radon Act also required EPA to establish two advisory committees to assist EPA in conducting the statutory research program. For one committee, Congress directed EPA to establish an advisory committee containing representatives of federal agencies concerned with various aspects of indoor air quality. § 403(c), 100 Stat. at 1759. The second advisory committee was to contain "individuals representing the States, the scientific community, industry, and public interest organizations." § 403(c), 100 Stat. at 1759. Congress, however, explicitly forbade to EPA any regulatory authority under the Act and limited EPA's authority to research, development, and related reporting, and coordination activities. § 404, 100 Stat. at 1760 (stating "[n]othing [in the Act] shall be construed to authorize the [EPA] to carry out any regulatory program or any activity other than research, development, and related reporting, information dissemination, and coordination activities specified" in the Radon Act) (italics added).

On January 7, 1993, pursuant to its statutory authority under the Radon Act, EPA formally issued a report entitled Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders, (the Report) that analyzed the effects of secondhand smoke on human health. EPA described its Report as the most recent scientific assessment of the health risks of secondhand smoke and that it "provide[d] important new documentation of the emerging scientific consensus that tobacco smoke is not just a health risk for smokers." According to EPA, the Report conclusively demonstrated that such smoke increased the risk of lung cancer in healthy nonsmokers. The Report stated that it is annually responsible for approximately 3,000 nonsmoker, lung cancer deaths in the United States and categorized secondhand smoke as a Group A (known human) carcinogen.

II.

On June 22, 1993, plaintiffs filed a four-count complaint challenging the legality of the Report and classification of secondhand smoke as a known human carcinogen. In Count I, plaintiffs alleged that the Report constituted regulatory action in violation of section 404 under the Radon Act and that EPA failed to establish properly an advisory committee pursuant to section 403(c). Count II alleged that EPA's decision to classify secondhand smoke as a human carcinogen was arbitrary and capricious. Count III charged that EPA violated the APA by failing to comply with EPA's internal Risk Assessment Guidelines. Finally, Count IV alleged that the Report violated the Due Process Clause of the United States Constitution by contravening the Radon Act and disregarding EPA's Risk Assessment Guidelines. Plaintiffs sought a declaratory judgment that the Report and the classification of ETS as a known human carcinogen were unlawful and an injunction ordering EPA to vacate the Report.

EPA initially filed a Motion to Dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure contending that the district court lacked jurisdiction to hear the complaint because the Report was not reviewable final agency action under the APA. On July 20, 1994, the district court denied EPA's motion holding that although the Report was informational and imposed no direct legal obligations or sanctions, it nonetheless was final agency action because it was definitive, had immediate practical effects, and immediate judicial review would foster agency and judicial efficiency. See Flue-Cured Tobacco Coop. Stabilization Corp. v. United States EPA, 857 F.Supp. 1137, 1140-45 (M.D.N.C.1994).

EPA then filed a Motion for Judgment on the Pleadings arguing that plaintiffs lacked proper standing to challenge the Report. On May 23, 1995, the district court denied this motion ruling that EPA's Report caused economic and reputation damage to plaintiffs and that a decision to vacate the Report would redress plaintiffs' injuries by reducing the public stigma attached to plaintiffs' products, rejuvenating product sales, and discouraging future public and private smoking restrictions based upon...