Natural Resources Defense Council v. Herrington

• Decision Date: 11 June 1986
• Docket Number: No. 86-1398.,86-1398.
• Citation: 637 F. Supp. 116
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiff, v. John S. HERRINGTON, et al., Defendants.
• Court: U.S. District Court — District of Columbia

637 F. Supp. 116

NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiff, v. John S. HERRINGTON, et al., Defendants.

No. 86-1398.

United States District Court, District of Columbia.

June 11, 1986.

Dan W. Reicher, Ronald J. Wilson, Washington, D.C., for plaintiff.

Mary E. Goetten, Washington, D.C., for defendants.

MEMORANDUM AND ORDER

JACKSON, District Judge.

Plaintiff Natural Resources Defense Council, Inc. ("NRDC"), a non-profit environmental protection organization, invoked the Federal Advisory Committee Act ("FACA" or "Act"), 5 U.S.C. App. II §§ 1-15, to gain admission to all collective activities of six scientist-executives convened last month by the Secretary of Energy to study the safety of a government-owned nuclear reactor currently in operation in the state of Washington. Denied access by the defendants, the Secretary and the Department of Energy ("DOE" or "Department"), NRDC now sues to enjoin those activities altogether until its representatives are allowed to attend, and defendants comply with certain other requirements of the Act as well.¹

The case is presently before the Court on plaintiff's motion for a preliminary injunction and defendants' cross-motion for summary judgment. The material facts appear of record and are not in dispute. For the reasons hereinafter set forth, the Court will deny plaintiff's application for a preliminary injunction, grant defendants' motion for summary judgment, and dismiss the complaint with prejudice.

I.

The litigation was provoked by a DOE initiative in response to the Soviet nuclear disaster at the Chernobyl power station near Kiev in the Ukraine in April, 1986. Before the Chernobyl reactor fire had been extinguished, Secretary Herrington invited six private U.S. citizens, each expert in certain aspects of nuclear physics, engineering, and systems management, to assist DOE in an expedited examination of the safety of its own plutonium production reactor, the N-Reactor, at the Hanford Reservation near Richland, Washington.² Like the one at Chernobyl, and apparently unlike any other in the United States, the N-Reactor, built in 1963, moderates the fission reaction of its fuel elements with graphite and cools the reactor core with water.

In a May 5th press release DOE announced that it had "established a special safety review panel" of experts to study the N-Reactor; two days later a DOE Assistant Secretary testified before a Congressional committee that Secretary Herrington had formed an "external panel of independent experts ... to conduct an analysis and review of the issues raised by the Soviet incident...." DOE then scheduled what it termed "joint briefings" for the experts in Washington, D.C., for May 22nd and 23rd on, principally, general aspects of the Chernobyl incident. Further "joint briefings" are to be given on June 12-13 on the N-Reactor specifically, and a tour of the N-Reactor during shut-down will be conducted on July 1-2. A final "joint briefing," if necessary, will take place in mid-July.

On May 16th NRDC learned of the first "joint briefing" session to occur the following week and, insisting that the "N-Reactor panel" was covered by FACA, asked to be allowed to send observers. On May 19th DOE refused, prompting the filing of this action on May 20, 1986.³

II.

The sole issue raised by defendants' motion for summary judgment is whether or not its ensemble of experts constitutes an "advisory committee" within the meaning of FACA.⁴ Section 3 of the Act provides,

the term "advisory committee" means any committee, board, commission, council, conference, panel, task force, or other similar group ... which is ... established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government....

5 U.S.C. App. II § 3(2)(C).

Read literally, that definition would seem to apply to virtually any convocation of two or more persons from whom any federal official desired information. See Nader v. Baroody, 396 F.Supp. 1231, 1232 (D.D.C. 1975), vacated as moot, No. 75-1969 (D.C. Cir. Jan. 10, 1977). Although cognizant that such a reading, if it were to import that any curious bystander who wanted to do so be privy to it, would effectively stifle much of the daily intercourse between the government and the rest of the nation, NRDC adverts to certain portions of the legislative history which suggest that Congress nevertheless fully intended as expansive an interpretation as possible be given the definition of "advisory committee," consistent with common sense, to protect federal decision-makers from nefarious influences. See S.Rep. No. 1098, 92d Cong., 2d Sess. 6 (1972). The Senate Report, for example, in explaining its version of the bill,⁵ stated:

The intention is to interpret the words "established" and "organized" in their most liberal sense, so that when an officer brings together a group by formal or informal means, by contract or other arrangement, and whether or not Federal money is expended, to obtain advice and information, such group is covered by the provisions of this bill.

S.Rep. No. 1098, 92d Cong., 2d Sess. 8 (1972).

NRDC implies that Secretary Herrington proceeded as he did, by way of an informal letter of invitation rather than, with authorization in advance from the President, giving formal notice in the Federal Register of an intent to appoint (as would be required by 5 U.S.C. App. II § 9(a) in the case of a true "advisory committee"), to avoid being bound by the Act and its public access provisions. But there is absolutely no evidence that the Secretary's failure to comply with the Act's requirements was employed as a subterfuge. See Nader v. Baroody, 396 F.Supp. at 1234. Cf. Food Chemical News, Inc. v. Davis, 378 F.Supp. 1048, 1051 (D.D.C.1974). It appears, rather, that the Secretary had no thought he might be appointing an "advisory committee" at all. He simply wanted the best advice available, public or private, as quickly as possible to avert a repetition of Chernobyl in the United States where conditions seemed most likely to predispose.

NRDC then calls attention to a number of attributes of the "N-Reactor panel" which are characteristic of the sort of formal consultative assembly Congress intended should be opened to the public. Not only does DOE itself speak of its creation as a "panel" which it acknowledges it has "established," the "panel" has a "structure" (i.e., a chair and vice-chair), a "charter" (i.e., the Secretary's letter), and a "staff" (i.e., a DOE official assigned by the Secretary to "support" the experts in their work).

DOE asserts that "a joint report will neither be sought nor accepted" from the experts, and cites a General Services Administration regulation which states that FACA is inapplicable to "any meeting initiated by a Federal official(s) with more than one individual for the purpose of obtaining the advice of individual attendees and not for the purpose of utilizing the group to obtain consensus advice or recommendations." 41 C.F.R. 101-6.1004(j) (1985). The N-Reactor experts are, it says, merely "individual consultants simultaneously retained." As authority for what the Secretary has done, however, the regulation begs the question, for it would provide no sanctuary for the experts' common endeavors outside public view if the statute itself does not permit it.

As a practical matter, DOE says, the appearance of a formal collegial existence for the body is illusory. The "chair" and "vice chair" appointments are merely administrative. No one will be presiding over evidentiary or deliberative proceedings; indeed, there will be none. The experts will work independently and report alone. The "charter" is simply the Secretary's letter explaining why and about what he is asking advice. The "staff" — of one — will function primarily as liaison. The "meetings" (or "joint briefings") will be occasions on which knowledge will be imparted by the government to the experts, not the other way around. Above all, no policy is to be made, save by the Secretary after he has been fully informed about the N-Reactor from sources both within and without the Department.

It serves no purpose here, however, to attempt to distinguish between "advisory committees" subject to the Act and other conclaves for the edification of government officials on the basis of some relative quantum of indicia of formality. It is apparent that the purpose of FACA was to suppress an evil which does not lurk in the circumstances of this particular case. Congress' concern, when it enacted FACA, was with a pernicious species of so-called "advisory" bodies: those dominated by industry leaders and the like with substantial parochial interest in the outcome of the matter under discussion, usually some onerous regulatory or policy proposal. The House Report warns that,

one of the great dangers in the unregulated use of advisory committees is that special interest groups may use their membership on such bodies to

...