Physicians for Soc.Responsibility v. Wheeler

• Decision Date: 21 April 2020
• Docket Number: No. 19-5104,19-5104
• Parties: PHYSICIANS FOR SOCIAL RESPONSIBILITY, et al., Appellants v. Andrew WHEELER, Administrator, U.S. Environmental Protection Agency, in his Official Capacity, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

956 F.3d 634

PHYSICIANS FOR SOCIAL RESPONSIBILITY, et al., Appellants

v.Andrew WHEELER, Administrator, U.S. Environmental Protection Agency, in his Official Capacity, Appellee

No. 19-5104

United States Court of Appeals, District of Columbia Circuit.

Argued February 19, 2020

Decided April 21, 2020

Neil Gormley argued the cause for appellants. With him on the briefs were Tosh Sagar, Michael Burger, and Patti Goldman, Seattle, WA.

Robert W. Ferguson, Attorney General, Office of the Attorney General for the State of Washington, Kelly T. Wood, Assistant Attorney General, Xavier Becerra, Attorney General, Office of the Attorney General for the State of California, William Tong, Attorney General, Office of the Attorney General for the State of Connecticut, Kwame Raoul, Attorney General, Office of the Attorney General for the State of Illinois, Daniel I. Rottenberg, Assistant Attorney General, Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, Joshua M. Segal, Special Assistant Attorney General, Gurbir S. Grewal, Attorney General, Office of the Attorney General for the State of New Jersey, Lisa Morelli, Deputy Attorney General, Letitia James, Attorney General, Office of the Attorney General for the State of New York, Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, Michael J. Myers, Senior Counsel, Ellen F. Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon, Josh Shapiro, Attorney General, Office of the Attorney General for the Commonwealth of Pennsylvania, Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachuse tts, Christophe Courchesne, Assi stant Attorney G eneral and Chief, Karl A. Racine , Attorney Gener al, Office of the Attorney General for the District of Columbia, and Loren L. AliKhan, Solicitor General, were on the brief for amici curiae the States of Washington, et al. in support of plaintiff-appellants and reversal.

Shaun A. Goho, Seattle, WA, was on the brief for amici curiae Lynn R. Goldman, et al. in support of appellants and reversal.

Jeffrey E. Sandberg, Attorney, U.S. Department of Justice, Washington, DC, argued the cause for appellee. With him on the brief was Mark B. Stern, Attorney.

Before: Rogers and Tatel, Circuit Judges, and Ginsburg, Senior Circuit Judge.

Tatel, Circuit Judge:

The Environmental Protection Agency (EPA) utilizes nearly two dozen scientific advisory committees—multimember groups that "review scientific research" relevant to the agency’s regulatory objectives and generally "provide advice and expertise from outside the agency." National Research Council, Science for Environmental Protection: The Road Ahead 180 (2012). Historically, EPA advisory committees have included academic scientists who, supported by EPA grants, conduct cutting-edge scientific and technical research important to the agency’s statutory mission. In 2017, the EPA Administrator issued a directive that now prohibits all grant recipients from serving on any agency advisory committee. Three scientists who had previously received EPA grants and served on advisory committees, along with several non-profit organizations, filed suit, arguing that the directive was both arbitrary and capricious and contrary to law in violation of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A). The district court granted EPA’s motion to dismiss, holding that the directive was unreviewable and, in the alternative, lawful. For the reasons explained below, we reverse.

I.

Several environmental statutes require EPA to ground its decision-making in scientific evidence. The Clean Air Act, for example, mandates that "[a]ir quality criteria ... accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare," 42 U.S.C. § 7408(a)(2), and the Toxic Substances Control Act requires the Administrator to "make decisions ... based on the weight of the scientific evidence," 15 U.S.C. § 2625(i).

To effectuate these statutory commands and ensure that "national efforts to reduce environmental risks are based on the best available scientific information," EPA, Our Mission and What We Do (Feb. 7, 2018), https://www.epa.gov/aboutepa/our-mission-and-what-we-do, EPA relies on twenty-two advisory committees to provide scientific knowledge relevant to the agency’s statutory objectives. These committees serve a range of functions. Some provide general knowledge across scientific domains, such as the Science Advisory Board (SAB) which offers "scientific advice" to EPA and Congressional committees. 42 U.S.C. § 4365(a). Others are tailored to specific statutory mandates. For example, the Federal Insecticide, Fungicide, and Rodenticide Act requires the Administrator to convene and consult a panel of "7 members appointed by the Administrator from a list of 12 nominees, 6 nominated by the National Institutes of Health and 6 by the National Science Foundation," chosen "on the basis of their professional qualifications to assess the effects of the impact of pesticides on health and the environment." 7 U.S.C. § 136w(d)(1). Similarly, the Clean Air Act requires EPA to create the Clean Air Scientific Advisory Committee (CASAC), directing the Administrator to appoint "seven members including at least one member of the National Academy of Sciences, one physician, and one person representing State air pollution control agencies." 42 U.S.C. § 7409(d)(2)(A). And while committees may be "advisory" in name, EPA engagement with such committees is often mandatory. The statute creating the SAB, for example, requires that the Administrator "shall make available" to the Board "any proposed criteria document, standard, limitation, or regulation" created under numerous environmental statutes and shared with any other agency, id . § 4365(c)(1), and the Clean Air Act requires that when issuing notice of certain proposed rules, EPA must "set forth or summarize" the findings and recommendations of CASAC and, "if the proposal differs in any important respect from any of these recommendations," EPA must provide "an explanation of the reasons for such differences," id. § 7607(d)(3).

EPA advisory committees, like others throughout the federal government, are authorized and regulated by the Federal Advisory Committee Act (FACA), 5 U.S.C. app. II §§ 1 et seq. FACA imposes government-wide procedural requirements on advisory committees, directing them to give advance notice of meetings; hold meetings "open to the public"; allow "[i]nterested persons" to "attend, appear before, or file statements"; keep minutes of each meeting and copies of all reports received, issued, or approved by the committee; and make committee records publicly available. Id . § 10(a)–(c). The Act also imposes substantive requirements. Committee "membership," for example, must be "fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee," id . § 5(b)(2), and implementing regulations for such a committee "shall ... contain appropriate provisions to assure that the [committee’s] advice and recommendations ... will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment," id . § 5(b)(3).

FACA charges the General Services Administration (GSA) with developing government-wide standards for convening advisory committees. In response, GSA has issued regulations that largely leave appointments to individual agency heads, explaining that "[u]nless otherwise provided by statute, Presidential Directive, or other establishment authority advisory committee members serve at the pleasure of the appointing or inviting authority," and that their "[m]embership terms are at the sole discretion of the appointing or inviting authority." 41 C.F.R. § 102-3.130(a). But that discretion is not boundless. Because advisory committee members are government workers—technically "special Government employee[s]" who perform temporary duties for the federal government for a limited period each year, 18 U.S.C. § 202(a) —GSA regulations require that each agency head "must ... [a]ssure that the interests and affiliations of advisory committee members are reviewed for conformance with applicable conflict of interest statutes ... and other Federal ethics rules," 41 C.F.R. § 102-3.105(h). GSA regulations, in other words, dictate that advisory committee members, just like all other government employees, are bound by federal ethics rules.

The ethics rules at issue in this case have been promulgated by the U.S. Office of Government Ethics (OGE), which is responsible for implementing two major ethics statutes. The Ethics in Government Act directs OGE to provide "overall direction of executive branch policies related to preventing conflicts of interest on the part of officers and employees of any executive agency." 5 U.S.C. app. § 402(a). And the federal conflict-of-interest statute likewise tasks OGE with identifying "the types of interests that are not so substantial as to be deemed likely to affect the integrity of the services the Government may expect from the employee," 18 U.S.C. § 208(d)(2)(B), and with granting class-wide exemptions from the ethics rules for certain conduct that is "too remote or too inconsequential to affect the integrity of the services of the Government officers or employees," id. § 208(b)(2).

Pursuant to these authorities, OGE issued a regulation known as the "Standards of Ethical Conduct for Employees of the Executive Branch," which interprets the conflict-of-interest statute and "establishes uniform standards of ethical conduct" for all executive-branch workers. 57 Fed. Reg. 35,006, 35,006 (Aug. 7, 1992). These detailed regulations tell government employees precisely when they might or might not have an ethics problem. And although...