Natural Resources Defense Council v. Abraham
| Citation | 223 F.Supp.2d 162 |
| Decision Date | 30 September 2002 |
| Docket Number | No. CIV.A.00-2431 EGS.,CIV.A.00-2431 EGS. |
| Parties | NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs, v. Spencer ABRAHAM, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Howard M. Crystal, Esquire, Eric R. Glitzenstein, Esquire, Meyer and Glitzenstein, Washington, DC, for Plaintiffs.
Marc Kesselman, Esquire, Department of Justice, Civil Division, Washington, DC, for Defendants.
The Department of Energy ("DOE") is currently overseeing the construction of a multi-billion dollar facility in Livermore, California named the National Ignition Facility ("NIF"). The NIF, as designed, would be used to initiate and sustain the nuclear fusion process in laboratory conditions. In theory, a fusion reaction would be produced by converging 192 lasers on a tiny fuel pellet, crushing and heating the pellet until its atoms emit nuclear energy, a process called "ignition." See Pl.Ex. 1, at 7 (GAO Report).
The Federal Advisory Committee Act ("FACA"), 5 U.S.C.App. 2, imposes certain requirements on advisory committees established by the federal government that include members who are not "full-time officers or employees of the Federal Government." 5 U.S.C.App. 2 § 3(2); see Food Chem. News v. Young, 900 F.2d 328, 332 (D.C.Cir.1990). Plaintiffs, National Resources Defense Council ("NRDC") and TriValley CARE, filed this lawsuit against DOE and the Secretary of DOE on October 11, 2000. Plaintiffs' claims arise under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. They claim that DOE has violated FACA through its formation and use of committees to advise it on the ongoing construction of the NIF. In addition, they aver that DOE has a policy of convening advisory committees in violation of FACA.
Defendants contend that plaintiffs do not have standing to seek the requested relief. Furthermore, they claim that none of the challenged committees is subject to FACA for two primary reasons. First, they maintain that the committees are primarily "operational" and not advisory and, second, that FACA does not apply to committees that are composed solely of federal employees and employees of federal contractors. With respect to the High Energy Density Physics Study Panel ("HEDP Panel"), defendants further argue that it did not function as a group. Finally, defendants aver that plaintiffs' "pattern and practice" claim is not legally cognizable.
The Court finds that plaintiffs have demonstrated that they have standing to bring their claims under FACA and the APA. Plaintiffs' procedural injuries will be sufficiently redressed by the declaratory and injunctive relief they seek. See Cummock v. Gore, 180 F.3d 282 (D.C.Cir.1999); Byrd v. Env'tl Protection Agency, 174 F.3d 239 (D.C.Cir.1999).
The Court finds that DOE's establishment and use of three of the four challenged committees contravenes FACA. The record before the Court indicates that the committees are advisory in nature, and not purely "operational," as argued by defendants. The committees did not have the capability of acting on their own and, rather, provided advice to the Department. With respect to defendants' argument that FACA does not apply to committees comprised of federal contractors and federal employees, defendants have relied solely on case law and legislative history that supports a conclusion that federal contractors who themselves convene committees are not subject to the strictures of FACA. The only applicable statutory exemption from FACA's coverage is for committees composed wholly of federal employees and officers. See 5 U.S.C.App. 2 § 3(2). The Court finds no basis for creating a new exception to FACA for committees established by federal agencies that include individuals who are not employees of federal contractors. Accordingly, the Court holds that FACA applies to committees established by DOE that include members who are not federal employees or officers, and are employed by federal contractors.
However, with respect to the HEDP Panel, plaintiffs have failed to present any evidence that would rebut defendants' claim that the panel did not function on a group. Consequently, the Court finds that FACA does not apply to DOE's establishment and use of the HEDP Panel.
Plaintiffs have established that DOE has a policy of convening committees without complying with FACA. Indeed, DOE avers that it has a written policy stating that status review committees are to be convened without conforming to FACA's requirements. Plaintiffs' claim is actionable pursuant to the APA, 5 U.S.C §§ 702, 704, and plaintiffs are entitled to a declaratory judgment on this claim. However, plaintiffs have failed to demonstrate that they are entitled to a court order that DOE give plaintiffs 60 days notice of its intent to convene a committee. Plaintiffs have failed to demonstrate that this requested relief is necessary or would be effective in remedying their asserted injuries.
The Court has carefully considered the parties' cross motions for summary judgment, the responses and replies thereto, the oral argument of counsel, the entire record herein, and the applicable statutory and case law. For the following reasons, the Court enters summary judgment for defendants, and against plaintiffs, on plaintiffs' claim that DOE's establishment and use of the HEDP Panel violated FACA. However, the Court enters summary judgment for plaintiffs, and against defendants, on plaintiffs' claims with respect to the Rebaseline Validation Review of the NIF ("Rebaseline Committee"), the two technical status review committees convened by DOE, and plaintiffs' claim that DOE has a policy of convening committees in violation of FACA. With the exception of plaintiffs' request that DOE be required to notify plaintiffs in advance of convening committees to advise it on the NIF, and whenever the use injunction is implicated, plaintiffs are entitled to their requested relief on these claims. The Court denies plaintiffs' request for an order requiring DOE to give plaintiffs notice of its intent to convene a committee, and denies without prejudice plaintiffs' request for notification of invocation of the use injunction.
This case initially concerned DOE's establishment and use of only one committee. Plaintiffs filed this lawsuit on October 11, 2000, contending that the Rebaseline Committee was subject to FACA. After plaintiffs requested a preliminary injunction, DOE reconvened many of the Rebaseline Committee members into a new committee, the Technical Status Review Committee (February 2001 Status Review Committee). Also in February 2001, DOE convened the HEDP Panel.
On March 28, 2001, this Court issued a preliminary injunction barring defendants from using the recommendations of either the Rebaseline Committee or the Status Review Committee outside of the Executive Branch and federal contractors, except in response to questions from Congress or the GAO, and then, only with a disclaimer.1 See Civ. Action. No 00-2431, Order of March 28, 2001, modified by Order of April 3, 2001.
On November 10, 2001, when DOE informed plaintiffs that it intended to convene another Technical Status Review Committee, the parties entered into a stipulation that the documents from the Technical Status Review Committee would be preserved pending the court's determination of whether the committee is subject to FACA.
In November 2001, and again in May 2002, DOE formed Technical Status Review Committees ("November 2001 Status Review Committee" and "May 2002 Status Review Committee"). Thus, subsequent to the filing of this lawsuit, DOE convened a total of four additional committees to advise it on the status of the NIF. On May 16, 2002, the parties filed a stipulation, in which they agree that, if the Court "rules that the November 2001 Technical Status Review Committee is covered by FACA, DOE will provide to plaintiffs" documents regarding the May 2002 committee.
Plaintiffs filed a supplemental complaint on June 4, 2002, in which they contend that DOE convened and used these additional four committees in violation of FACA. Plaintiffs, in their initial complaint and in their supplemental complaint, allege that each of the five committees was convened in violation of FACA and that DOE has a pattern and policy of utilizing committees in violation of FACA.
Plaintiffs seek five specific forms of relief. With respect to their claims that the five committees — the Rebaseline Committee, the HEDP Panel and three Status Review Committees — were subject to FACA and that DOE failed to convene the committees in accordance with FACA, plaintiffs seek declaratory relief, an injunction on use of the committee reports without an appropriate disclaimer that the committees operated in violation of FACA, and disclosure of committee materials subject to public review pursuant to FACA. In addition, plaintiffs' supplemental complaint seeks an order requiring defendants to notify plaintiffs whenever the disclaimer is "invoked." With respect to their claim that DOE has a policy of establishing committees to advise it on the NIF in violation of FACA, plaintiffs seek declaratory relief and an injunction that would require DOE to inform plaintiffs of their intention to establish a committee 60 days before such a committee was created.
The NIF, if completed, will be a unique 192-beam laser capable of compressing and heating a small capsule to conditions at which thermonuclear fusion and ignition occur. According to the government, the NIF is a key component of DOE's Stockpile Stewardship Program, the goal of which is to maintain the United States' nuclear arsenal without underground nuclear testing.
NIF was first proposed in 1990, and construction was commenced in May, 1997. Since the inception of the NIF project, scientists and...
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