Pacific Legal Foundation v. Council on Environmental Quality, s. 79-1689
| Decision Date | 27 October 1980 |
| Docket Number | 79-1846,Nos. 79-1689,s. 79-1689 |
| Citation | 636 F.2d 1259 |
| Parties | , 205 U.S.App.D.C. 131, 10 Envtl. L. Rep. 20,919 PACIFIC LEGAL FOUNDATION, Petitioner, v. The COUNCIL ON ENVIRONMENTAL QUALITY, Respondent. PACIFIC LEGAL FOUNDATION, Appellant, v. The COUNCIL ON ENVIRONMENTAL QUALITY et al., Appellees. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Sam Kazman, Washington, D. C., with whom Ronald A. Zumbrun, Sacramento, Cal. and Raymond M. Momboisse, Washington, D. C., were on brief, for petitioner-appellant.
Frank A. Rosenfeld, Atty., Dept. of Justice, Washington, D. C., with whom Alice Daniel, Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty., Leonard Schaitman and Joseph B. Scott, Attys., Dept. of Justice, Washington, D. C., were on brief, for respondent-appellee and appellees.
Lawton Chiles, Washington, D. C., filed an amicus curiae brief pro se.
Before McGOWAN and EDWARDS, Circuit Judges, and DANIEL M. FRIEDMAN, * Chief Judge, United States Court of Claims.
Opinion for the Court filed by Chief Judge FRIEDMAN, United States Court of Claims.
These consolidated cases challenge regulations of the Council on Environmental Quality (Council) that make the Government We hold in No. 79-1689 that the Council's regulations are invalid insofar as they limit the applicability of the Sunshine Act in those two respects, and we therefore set aside those portions of the regulations. In light of that ruling, we find it unnecessary to decide the merits of No. 79-1846.
in the Sunshine Act (Sunshine Act), 5 U.S.C. § 552b, inapplicable to two types of Council action: (1) advising the President and (2) other actions on which the Council is not required to take a formal vote. No. 79-1689 is a petition to review the portion of the Council's Sunshine Act regulations that thus limit the applicability of the Act. No. 79-1846 is an appeal from a decision of the United States District Court for the District of Columbia dismissing a complaint charging that the Council's practices prior to adopting those regulations violated the Sunshine Act. 1
The Sunshine Act, enacted in 1976, Pub.L.No. 94-409 (90 Stat. 1241), generally requires that meetings of government agencies be public. The Act reflects the policy, as stated in its Declaration of Policy, that "the public is entitled to the fullest practicable information regarding the decisionmaking processes of the Federal Government." Pub.L.No. 94-409, § 2. To accomplish this objective, the Act directs that "every portion of every meeting" of a multi-member agency must "be open to public observation." 5 U.S.C. § 552b(b). It also requires that in most cases the time, place, and subject of meetings be announced at least one week before the meeting. 5 U.S.C. § 552b(e) (1).
The Act defines "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). It defines "agency" as any agency as defined in the Freedom of Information Act, 5 U.S.C. § 552(e), that is "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, and any subdivision thereof authorized to act on behalf of the agency." 5 U.S.C. § 552b(a)(1).
The Act contains ten exceptions to the open-meeting requirement of section 552b(b). 5 U.S.C. § 552b(c). Those exceptions, based upon the subject matter to be considered, permit but do not require an agency to close a meeting. Many of the exceptions closely parallel and are based upon the exceptions from disclosure in the Freedom of Information Act, 5 U.S.C. § 552(b). H.R.Rep.No.94-880, Part II, 94th Cong., 2d Sess. 15 (1976), reprinted in (1976) U.S.Code, Cong. & Ad.News pp. 2212, 2224. An agency is required to take a formal vote to close a meeting. 5 U.S.C. § 552b(d). If the meeting is closed, then the agency must make a recording, transcript, or minutes of the meeting from which the nonexempted portions of the meeting can be excerpted and made public. 5 U.S.C. § 552b(f).
Subsection (g) requires each agency subject to the Act to promulgate regulations to "implement" the foregoing requirements.
The Act gives this court jurisdiction to review those regulations, set aside those not in conformity with the Act, and require agencies to publish regulations in accord with the Act's requirements. 5 U.S.C. § 552b(g). Additionally, the district courts are given jurisdiction to enforce agency compliance with the Act. 5 U.S.C. § 552b(h)(1).
The Council, a unit within the Executive Office of the President, consists of three members appointed by the President with NEPA directs the Council to assist and advise the President in preparing the President's annual Environmental Quality Report, to prepare and submit to the President studies regarding environmental conditions and trends, to review and appraise federal programs that affect the environment and to make recommendations to the President thereon, and to recommend national environmental policies to the President. NEPA also directs the Council generally to conduct environmental research and to monitor environmental trends. 42 U.S.C. § 4344.
Senate approval, one of whom he designates as chairman. 42 U.S.C. § 4342. The Council was created by Title II of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4342-47, enacted in 1969. Pursuant to the Environmental Quality Improvement Act, 42 U.S.C. §§ 4371-74, the Chairman also serves as Director of the Office of Environmental Quality.
Several executive orders have expanded the Council's functions by assigning it responsibilities for overseeing activities of federal agencies. Executive Order No. 11514 (March 5, 1970) directs the Council to coordinate federal programs related to environmental quality and to issue guidelines to federal agencies for the preparation of environmental impact statements. Section 3(f), (h), 3 C.F.R. 902, 904 (1966-1970 compilation). Executive Order No. 11991 (May 24, 1977) amplifies this authority by directing the Council to issue regulations to federal agencies for implementing all of the procedural provisions of NEPA. Section 1, 3 C.F.R. 123, 124 (1978). Under Executive Order No. 11735 (August 3, 1973), the Council publishes and periodically revises the national contingency plan for the removal of oil and hazardous substances from navigable waters. Section 4, 3 C.F.R. 793, 795 (1971-1975 compilation).
In January 1979, Pacific Legal Foundation (Pacific), a nonprofit, tax-exempt public interest organization, filed a suit in the district court against the Council, its members and its general counsel, seeking declaratory and injunctive relief. The complaint alleged that since June 8, 1977 the Council had not complied with the Sunshine Act and the Council's implementing regulations because it had acted in proceedings that constituted "meetings" under the Act but had neither made the meetings public nor closed the meetings in accordance with the statutory requirements for such action.
In June 1979, the district court granted the defendants' motion for summary judgment and dismissed the suit. Based upon the "sparse legislative history relevant to this issue," the court concluded that "the formulation and presentation of advice to the President on environmental matters, which is the CEQ's primary responsibility, is (not) 'official agency business' subject to the requirements of the Act." 13 E.R.C. 1273, 1276 (D.D.C.1979). The appeal in No. 79-1846 is from that dismissal of the complaint.
The day before the district court dismissed Pacific's suit, the Council adopted the amended Sunshine regulations that Pacific challenges in 79-1689. 2 As noted, the Act defines "meeting" as the "deliberations" of agency members that "determine or result in the joint conduct or disposition of official agency business." 5 U.S.C. § 552b(a)(2). The amended regulations define "official agency business" as "official collegial Council business," 40 C.F.R. § 1517.2(b), which is in turn defined as "any Council action which by statute, regulation, Executive Order, or internal Council procedures requires an affirmative vote of at least two Council members in order to be taken on behalf of the Council." 40 C.F.R. § 1517.2(c).
The regulations further provide that official agency business includes "the adoption of regulations" but does not include "advice to the President (or) actions taken by the
Chairman acting as Director of the Office of Environmental Quality under the Environmental Quality Improvement Act of 1970." Id. In addition, the regulations state that the term " '(m)eeting' shall not be construed to prevent Council members from considering Council business that is circulated to them individually in writing." 40 C.F.R. § 1517.2(b).
A. The Council recognizes that it is an "agency" under the Act. Indeed, it could hardly do otherwise in view of the statutory definition of that term. The Act incorporates by reference the definition of "agency" in the Freedom of Information Act, 5 U.S.C. § 552(e). Under that definition, agency includes "any ... establishment in the executive branch of the Government (including the Executive Office of the President)." The Council is a part of the Executive Office.
The situation before us here is similar to that in Soucie v. David, 145 U.S.App.D.C. 144, 448 F.2d 1067 (1971). That was a Freedom of Information Act case in which w...
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