Natural Recources Defense v. Nuclear Regulatory comm'n.

• Decision Date: 14 July 2000
• Docket Number: No. 99-1383,99-1383
• Citation: 216 F.3d 1180
• Parties: (D.C. Cir. 2000) Natural Resources Defense Council, Inc., et al.,Petitioners v. Nuclear Regulatory Commission and United States of America, Respondents
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1180

216 F.3d 1180 (D.C. Cir. 2000)

Natural Resources Defense Council, Inc., et al.,Petitioners v. Nuclear Regulatory Commission and United States of America, Respondents

No. 99-1383

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 8, 2000

Decided July 14, 2000

On Petition for Review of a Regulation of the Nuclear Regulatory Commission

David E. Adelman argued the cause for petitioners. With him on the briefs were Eric R. Glitzenstein and Howard Crystal.

Wendy M. Keats, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief were David W. Ogden, Acting Assistant Attorney General,

Leonard Schaitman, Attorney, and John F. Cordes, Solicitor, U.S. Nuclear Regulatory Commission.

Before: Edwards, Chief Judge, Randolph and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge:

The National Resources Defense Council, Inc. (NRDC)¹ asks us to vacate a regulation, promulgated by the Nuclear Regulatory Commission, that defines the term "meeting" for purposes of the Government in the Sunshine Act, 5 U.S.C. 552b. The Sunshine Act requires that gatherings of members of certain agencies be open to the public if they constitute "meetings" under the Act. NRDC argues that the Commission's regulation is inconsistent with the text and legislative history of the statute. It further contends that the regulation is improper because it fails to provide procedural safeguards necessary to facilitate effective relief in the event that a meeting is improperly closed to the public.

We deny the petition for review. We are unable to accept NRDC's first argument because the Commission has done nothing more than adopt, verbatim, the Supreme Court's own interpretation of the meaning of "meeting" under the Act, as set forth in FCC v. ITT World Communications, Inc., 466 U.S. 463 (1984). We are unable to accept the second argument because it conflicts with the Court's injunction against imposing non-statutory procedural requirements on agency decisionmaking, as set forth in Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978).

I

The Sunshine Act provides, with ten specified exemptions, that "every portion of every meeting of an agency shall be open to public observation." 5 U.S.C. 552b(b) (emphasis added). It imposes procedural requirements to ensure, inter alia, that advance notice is given to the public before agency meetings take place. See id. 552b(e). It also imposes procedural requirements an agency must follow before determining that one of the ten exemptions from the openness requirement applies. See id. 552b(d), (f). However, neither the openness requirement, nor the related procedural requirements, are triggered unless the governmental entity at issue is an "agency," and unless the gathering in question is a "meeting" of that agency.

For purposes of the Act, "agency" is defined as an executive branch authority or independent regulatory agency "headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate." Id. 552b(a)(1) (cross-referencing 5 U.S.C. 552(e), subsequently redesignated 552(f)). In addition, as will become relevant in our later discussion of the ITT case, the definition of "agency" extends to "any subdivision thereof authorized to act on behalf of the agency." Id. 552b(a)(1).The Nuclear Regulatory Commission is an agency covered by the Act. See Philadelphia Newspapers, Inc. v. NRC, 727 F.2d 1195, 1199-1200 (D.C. Cir. 1984).²

The Sunshine Act defines the term "meeting" as "the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official agency business...." 5 U.S.C. 552b(a)(2). The Commission's original Sunshine Act regulation, adopted in 1977, merely reproduced the language of the statutory definition. See 42 Fed. Reg. 12,875, 12,877 (1977).³ It also clarified the kinds of communications not subject to the Act, explicitly excepting only social gatherings, and briefings of the Commission by outsiders where discussion was informational and without specific reference to pending Commission matters. See id. Under the 1977 regulation, the Commission "treated every discussion of agency business by three or more Commissioners, no matter how informal or preliminary it might be, as a 'meeting' for Sunshine Act purposes." 64 Fed. Reg. 24,936, 24,937 (1999).

In 1984, the Supreme Court decided ITT. In the course of its opinion, the Court said the following about the term "meeting" under the Act:

This statutory language contemplates discussions thateffectively predetermine official actions. Such discussions must be sufficiently focused on discrete proposalsor issues as to cause or to be likely to cause the individual participating members to form reasonably firm posi-tions regarding matters pending or likely to arise before the agency.

466 U.S. at 471 (citations and quotation marks omitted). In 1985, noting the decision in ITT, the Commission issued an "interim" rule that revised the definition of "meeting" by appending the Supreme Court's definition, verbatim, to the language of the prior regulation. See 50 Fed. Reg. 20,889 (1985). The 1985 rule stated:

"Meeting" means the deliberations of at least a quorum of Commissioners where such deliberations determine orresult in the joint conduct or disposition of official Com-mission business, that is, where discussions are sufficiently focused on discrete proposals or issues as tocause or to be likely to cause the individual participating members to form reasonably firm positions regard-ing matters pending or likely to arise before the agency.

Id. at 20,891 (codified at 10 C.F.R. 9.101(c)) (new language in italics).

The 1985 rule was controversial. In response to criticism, the Commission announced that it would not conduct nonSunshine Act discussions until it put into place procedures to govern such discussions. Before the Commission completed those procedures, the American Bar Association's Administrative Law Section announced its intention to consider the issue, and the Commission decided to defer implementation of the 1985 rule pending receipt of the ABA's views. See 64 Fed. Reg. at 24,938. In 1987, the ABA issued its recommendations, which urged federal agencies and courts to interpret the term "meeting" as the Commission had proposed in 1985--by using the Supreme Court's language in ITT. See ABA Section of Administrative Law, Report to House of Delegates (J.A. at 460).⁴ Despite the ABA's recommendations, the Commission took no further action. Although the "interim" rule of 1985 remained on the books, the agency continued to apply its pre-1985 regulation.

In May 1999, the Commission published, for notice and comment in the Federal Register, its intention to implement the 1985 rule's definition of "meeting." The Commission stated that its purpose was "to bring the NRC's Sunshine Act regulations, and the way they are applied by NRC, into closer conformity with Congressional intent, as set forth in the legislative history of the Sunshine Act and as clarified in [ITT]." 64 Fed. Reg. at 24,936. In the Commission's view, Congress had "carefully weighed the competing considerations involved: the public's right of access to significant information, on the one hand, and the agencies' need to be able to function in an efficient and collegial manner on the other." Id. at 24,939. "Congress," the Commission said, had "struck a balance: it did not legislate openness to the maximum extent possible, nor did it provide unfettered discretion to agencies to offer only as much public access as they might choose." Id. The notice listed a number of examples of topics that might be the subject of non-Sunshine Act discussions under the new rule, "so long as the discussion will not effectively predetermine final agency action." Id. at 24,941.The topics included: "How well is the agency functioning, what are our successes and failures, what do we see as major challenges in the next five and ten years, what is the state of our relations with the public, industry, Congress, the press?"Id. at 24,941-42.⁵ A final order implementing the rule became effective on August 23, 1999. 64 Fed. Reg. 39,393 (1999).

II

This court has authority to set aside agency regulations that are "not in accord with" the requirements of the Sunshine Act. 5 U.S.C. 552b(g). That, NRDC contends, is how the Commission's definition of "meeting" should be characterized. We consider this contention below.

A

In petitioner's view, the agency's definition of "meeting" is fundamentally inconsistent with both the language and legislative history of the Act. NRDC's argument concerning the statutory language cannot be easily dismissed. The Act states that the term "meeting" means the deliberations of a quorum of an agency, "where such deliberations determine or result in the joint conduct or disposition of official agency business." 5 U.S.C. 552b(a)(2) (emphasis added). Selecting from the "or" clauses, the statutory definition of "meeting" would appear to include any deliberations that "result in the joint conduct ... of official agency business," even if they do not "determine" either the joint conduct or disposition of that business. The Commission's definition, on the other hand, is limited to deliberations that are "likely to cause the individual participating members to form reasonably firm positions regarding" the matter--that is, to deliberations that "effectively predetermine final agency action." 64 Fed. Reg. at 24,941. Indeed, the Commission's examples of what it regards as outside the scope of "meetings" demonstrate the potential divergence between its definition and the literal statutory language. As NRDC argues, surely formal...