Natural Resources Defense Council v. Pena

• Citation: 147 F.3d 1012
• Decision Date: 17 July 1998
• Docket Number: Nos. 97-5253,97-5254,s. 97-5253
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, et al., Appellees, v. Federico F. PENA, Secretary, The Department of Energy, and National Academy of Sciences, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1012

147 F.3d 1012

331 U.S.App.D.C. 198

NATURAL RESOURCES DEFENSE COUNCIL, et al., Appellees, v. Federico F. PENA, Secretary, The Department of Energy, and National Academy of Sciences, Appellants.

Nos. 97-5253, 97-5254.

United States Court of Appeals District of Columbia Circuit.

Argued March 13, 1998.

Decided July 17, 1998.

Appeals from the United States District Court for the District of Columbia (No. 97cv00308).

Alisa B. Klein, Attorney, United States Department of Justice, argued the cause for the federal appellant. Frank W. Hunger, Assistant Attorney General, Mary Lou Leary, United States Attorney at the time the brief was filed, and Mark B. Stern, Attorney, United States Department of Justice, were on brief.

Nathan C. Sheers argued the cause for appellant National Academy of Sciences. Carter G. Phillips, James R. Wright and Audrey Byrd Mosley were on brief.

Howard Crystal argued the cause for the appellees. Eric R. Glitzenstein was on brief.

Before: HENDERSON, ROGERS and GARLAND, Circuit Judges.

KAREN LeCRAFT HENDERSON, Circuit Judge:

This appeal poses the recurring question of what remedy is appropriate for a federal agency's violation of the Federal Advisory Committee Act, 5 U.S.C.App. 2, §§ 1 et seq., (FACA). The appellants, the United States Department of Energy (Department or DOE) and the National Academy of Sciences (Academy or NAS), appeal the district court's grant of a permanent injunction against the Department's use of or reliance on a report prepared by an Academy committee, which committee both the Department and the Academy concede was organized and operated in violation of FACA. Because we have serious doubts whether the "use injunction" redresses any of the appellees' claimed injuries and because we believe the district court erred in failing to afford the appellees an opportunity to take discovery and refine their request for equitable relief, we reverse and remand.

I. BACKGROUND

In December 1995 a DOE official contacted the then-president of the Academy, proposing a contract between the Department and the Academy pursuant to which the Academy would select and convene a committee of experts to study and review certain technical and scientific issues associated with the Department's Inertial Confinement Fusion (ICF) Program. "ICF is a conceptual method for achieving a fusion reaction by compressing and confining a small pellet containing fuel such as a deuterium and tritium mixture through the inward forces of inertia generated on the fuel by the ablation ... of the outer surface of the pellet." Zolandz Decl. p 7. The scientific objective of ICF is to achieve "ignition"--i.e., a self-sustaining fusion reaction that produces more energy than is required to initiate the reaction. Id. p 6. The Department sponsors and performs research into and development of ICF processes to provide "valuable information for national defense, energy, and other industrial and scientific applications." First Crandall Decl. p 4.

The Academy and the Department formalized their agreement in a letter contract in May 1996. Under the contract, the ICF committee (Committee) was given three missions: "(1) determine the scientific and technological readiness of the NIF [National Ignition Facility] project, (2) assess the entire ICF program (including program scope, balance, and priorities; facility operation; experimentation; theory; etc.) and make recommendations to facilitate the achievement of the scientific goal, which is ignition, and (3) evaluate the capabilities of the ICF program (in conjunction with NIF) to support [Science-Based Stockpile Stewardship program to maintain national nuclear arsenal]." Taylor Decl. p 11. NIF is a principal component of the Department's ICF program and is "a national center to study inertial fusion and high-energy-density science." First Crandall Decl. p 5. It is being built, at a projected cost in excess of $1 billion, at the Lawrence Livermore National Laboratory (LLNL) in Livermore, California. Id. When complete, the "NIF will house a powerful laser, consisting of 192 beams, which will be used to simulate processes that occur in nuclear weapons and to 'ignite' small fusion targets in the laboratory for the first time." Id. As of the date the Department contracted with the Academy to form the Committee, NIF had entered the preliminary design and planning stage but the Department had not yet decided whether to proceed with construction. Id. p 12.

Pursuant to the letter contract, the Department agreed to pay the Academy $335,700 to defray the Committee's costs during the first (and, as it now turns out, only) year of its existence. The Academy, in accordance with its own procedures but without reference to FACA, named fifteen scientists to the Committee in May 1996. Zolandz Decl. pp 11, 13. The Department had no input into or control over the appointments. Id. pp 13-14. While some Committee members, it appears, had consulting contracts with, or other professional ties to, LLNL (see First Cochran Decl. p 8), "[n]o one receiving any funding from a DOE ICF program ... was permitted to serve as a member of the ICF committee." Zolandz Decl. p 19. Moreover, no DOE personnel participated in the Committee's deliberations. Id. p 16.

The Committee met six times during the fall of 1996. At the Committee's request, DOE personnel attended most of the meetings and briefed the Committee on various aspects of the ICF program and NIF. The majority of the briefings were closed to the public because of their classified nature. Upon request, the Academy apprised the public of the Committee's membership, agendas, open meetings and mission statement. When appropriate, the Committee also allotted meeting time to members of the public to present their views. Indeed, three of the four appellees--the Natural Resources Defense Council (NRDC), Dr. Thomas B. Cochran and Tri-Valley CAREs (Citizens Against a Radioactive Environment)--made known to the Committee their views on the ICF program and NIF. The fourth appellee, the Western States Legal Foundation, was invited to a Committee meeting but declined to attend. See Zolandz Decl. p 24; Velluvia Decl. p 4.

The Committee concluded its meetings in December 1996 and began drafting a report of its findings. The same month the Department approved the Programmatic Environmental Impact Statement for NIF, a statement required by the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., thus clearing the last major regulatory bar to constructing NIF. On February 14, 1997, however, the appellees filed a complaint for declaratory and injunctive relief, alleging that the Committee was an "advisory committee" and that it had not been established or operated in conformity with FACA. The complaint sought equitable relief and attorneys' fees, specifically requesting that the district court:

(2) preliminarily and permanently enjoin DOE from relying on any deliberations, reports or recommendations from the ICF Committee;

(3) preliminarily and permanently enjoin DOE from providing any funding for activities of the ICF Committee, including the dissemination of any reports or other work product;

(4) preliminarily and permanently enjoin NAS from permitting the ICF Committee to continue to meet, deliberate, or prepare any work product, including the Interim Report;....

Compl. 9-10.

Each of the four appellees is either a non-profit organization or an employee of such organization. Since 1982, appellee Western States Legal Foundation "has engaged in administrative proceedings, litigation, public education efforts and grassroots organizing to promote disarmament, ensure the clean-up of federal nuclear weapons research, testing and production facilities, and challenge nuclear weapons programs." Compl. p 6. It includes members who "live and engage in recreational activities in the vicinity of LLNL." Id. Appellee Cochran is employed by the NRDC as the director of its nuclear program and has a professional interest in and involvement with nuclear energy and non-proliferation issues. See id. p 4. Appellee NRDC has "over 300,000 members, and is interested in the work of the ICF Committee." Id. p 3. Appellee Tri-Valley CAREs is based in Livermore, California and "undertakes projects that increase public knowledge of the relationship between peace and environmental issues, including public education regarding potential impacts from the production, treatment, storage and disposal of hazardous and radioactive waste." Id. p 7. Tri- Valley's members "reside, own property, work, recreate and attend public meetings near LLNL" and they "have participated in many administrative, legal and grassroots efforts involving the DOE's nuclear weapons complex, including the plans for the NIF at LLNL." Id. Of particular concern to Tri-Valley's membership is the potential environmental contamination that may result from NIF's operation, including release into the environment of deuterium and tritium--two elements that are the primary constituents of the fuel pellets NIF intends to ignite. See Kelley Decl. pp 4-9.

The apparent impetus for this lawsuit is a decision of this Court, Animal Legal Defense Fund v. Shalala, 104 F.3d 424 (D.C.Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 367, 139 L.Ed.2d 285 (1997), (ALDF) which on January 10, 1997 held that a committee created by the Academy for the benefit of the United States Department of Health and Human Services constituted an "advisory committee" and was therefore subject to FACA requirements. The ALDF decision reversed a December 1995 district court order which the Department and the Academy had apparently relied on in determining that the Committee need not comply with FACA. Perhaps operating on the same assumption, the appellees never invoked FACA, although they did complain about the Committee's composition and raised conflict-of-interest questions, until after ALDF was decided--at which point the Committee had...