Physicians For Social Responsibility v. Wheeler

• Citation: 359 F.Supp.3d 27
• Decision Date: 12 February 2019
• Docket Number: Case No. 1:17-cv-02742 (TNM)
• Parties: PHYSICIANS FOR SOCIAL RESPONSIBILITY, et al., Plaintiffs, v. Andrew R. WHEELER, Acting Administrator, U.S. Environmental Protection Agency, in His Official Capacity, Defendant.
• Court: U.S. District Court — District of Columbia

359 F.Supp.3d 27

PHYSICIANS FOR SOCIAL RESPONSIBILITY, et al., Plaintiffs,

v.Andrew R. WHEELER, Acting Administrator, U.S. Environmental Protection Agency, in His Official Capacity, Defendant.

Case No. 1:17-cv-02742 (TNM)

United States District Court, District of Columbia.

Signed February 12, 2019

Patti A. Goldman, Earthjustice, Seattle, WA, Neil Edward Gormley, Earthjustice, Washington, DC, for Plaintiffs Physicians for Social Responsibility, National Hispanic Medical Association, International Society for Children's Health and the Environment, Edward Lawrence Avol.

Susan J. Kraham, Morningside Heights Legal Services, Inc. Environmental Law Clinic, New York, NY, Neil Edward Gormley, Earthjustice, Washington, DC, for Plaintiffs Joe Arvai, Robyn Wilson.

Daniel Edward Bensing, James R. Powers, U.S. Department of Justice, Damon William Taaffe, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

The U.S. Environmental Protection Agency recently issued a directive announcing new membership priorities for its federal advisory committees (the "Directive"). The Directive requires, in part, "that no member of an EPA federal advisory committee be currently in receipt of EPA grants." The Plaintiffs complain that this requirement is arbitrary and capricious, conflicts with several statutes and regulations governing advisory committees, and is a shift in policy that EPA failed to explain.

EPA's Acting Administrator,¹ however, has moved to dismiss the suit under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). At the outset, EPA alleges that the Plaintiffs lack standing and their claims are unripe. It also argues that because the Directive is an appointment policy, it is a matter reserved to agency discretion and the Plaintiffs largely rely on statutes that are either inapposite or offer no meaningful standard for review. And even if the Plaintiffs have identified applicable statutes, EPA argues that the Plaintiffs have failed to allege a violation of any specific statutory provision. For the reasons stated below, EPA's motion to dismiss will be granted.

I. BACKGROUND

EPA's mission is to protect human health and the environment. See EPA, Returning EPA to its Core Mission , https://www.epa.gov/home/returning-epa-its-core-mission (last visited Feb. 11, 2019). Besides developing and enforcing environmental regulations, EPA accomplishes its mission by awarding grants to state environmental programs, non-profits, and others to conduct research and implement environmental projects. Indeed, many statutes that EPA administers authorize grant programs that fund environmental research. See, e.g. , 42 U.S.C. § 7403(b)(3) (Clean Air Act); 33 U.S.C. § 1254(b)(3) (Clean Water Act).

EPA relies on 22 federal advisory committees for guidance on various environmental and health issues to ensure effective regulation. Advisory committees can be established by statute or by the President or an agency head. Eight of EPA's advisory committees are established by statute.² EPA's advisory committees are subject to the Federal Advisory Committee Act ("FACA"), 5 U.S.C. App. 2 §§ 1 – 15, which regulates the operations of federal advisory committees.

Agency heads have broad discretion over the composition of advisory committees. Under the General Services Administration regulations implementing FACA, "[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. Membership terms are at the sole discretion of the appointing or inviting authority." 41 C.F.R. § 102–3.130(a).

FACA imposes no specific constraints or requirements on who may serve on advisory committees. But agencies must ensure that membership is "fairly balanced in terms of points of view represented and the functions to be performed by the advisory committee." 5 U.S.C. App. 2 § 5(b)(2). And there must be provisions "to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest." Id. § 5(b)(3).

The statutes establishing particular EPA advisory committees do, however, impose some qualification requirements for committee membership. Some qualification requirements are specific—e.g. , the CASAC must have "at least one member of the National Academy of Sciences, one physician, and one person representing State air pollution agencies." 42 U.S.C. § 7409(d)(2)(A). Others are general—e.g. , the SAB's members "shall be qualified by education, training, and experience to evaluate scientific and technical information on matters referred to the Board" by statute. 42 U.S.C. § 4365(b). Members of EPA advisory committees are often scientists, academics, medical professionals, or experts in areas relevant to EPA's mission. While serving, some committee members are classified as "special government employees."³

The Directive announced four "principles and procedures" that EPA would apply "when establishing the membership of [advisory] committees," in order to "strengthen and improve the independence, diversity and breadth of participation on EPA federal advisory committees." Am. Compl., Ex. A ("Dir."), ECF No. 20-2. This suit relates to the Directive's first principle. It requires that "[m]embers shall be independent from EPA ... includ[ing] a requirement that no member of an EPA federal advisory committee be currently in receipt of EPA grants." Id. ¶ 1. The principle, however, does "not apply to state, tribal or local government agency recipients of EPA grants." Id. In an accompanying memorandum, EPA explained that it sought to avoid "creat[ing] the appearance or reality of potential interference with [committee members'] ability to independently and objectively serve" EPA. Am. Compl., Ex. B ("Mem.") at 3, ECF No. 20-3. Previously, EPA allowed scientists and experts to serve on advisory committees while receiving EPA grants.

The Directive's three other principles are not at issue, but they provide context. The Directive requires that "committee balance should reflect prominent participation from state, tribal and local governments," and "[s]uch participation should be appropriate for the committee's purpose and function." Dir. ¶ 2. To enhance geographic diversity, the Directive requires that "membership should be balanced with individuals from different states and EPA regions," and emphasis "should be given to individuals from historically unrepresented or underrepresented states and regions." Id. ¶ 3. Finally, "[t]o encourage and promote the inclusion of new candidates with fresh perspectives and to avoid prolonged and continuous service," the Directive requires that "membership should be rotated regularly." Id. ¶ 4.

The Plaintiffs in this case—Physicians for Social Responsibility, the National Hispanic Medical Association, the International Society for Children's Health and the Environment (ISCHE), Joe Arvai, Edward Avol, and Robyn Wilson (collectively, "Physicians")—are individuals and organizations representing individuals, who are serving, have served, or hope to serve on EPA advisory committees. After EPA issued the Directive, it removed Dr. Wilson from the SAB because she was receiving EPA grant funding. See Am. Compl. ¶¶ 12, 57, ECF No. 20. And EPA told ISCHE member Dr. Rob McConnell that, because of the Directive, he must choose between continued service on the CASAC Particulate Matter Review Panel and his EPA-funded research. See id. ¶¶ 62–63.

Physicians' Amended Complaint brings four counts. In Count I, Physicians allege that the Directive clashes with the conflict of interest statute, 18 U.S.C. § 208, and ethics regulations promulgated by the Office of Government Ethics ("OGE") because it bars activity that those rules allow, see 5 C.F.R. § 2340.203(g). And they allege that the Directive is a shift in EPA's policy that the agency failed adequately to explain. They allege in Count II that EPA did not comply with OGE procedural requirements for supplementing the federal ethics rules. Physicians allege in Count III that the Directive eliminates FACA's requirements that committees be "fairly balanced" and not "inappropriately influenced," see 5 U.S.C. App. 2, § 5(b)(2), (3). Finally, Physicians allege in Count IV that the Directive violates the statutes establishing EPA advisory committees by removing otherwise qualified scientists from consideration for committee membership.

EPA, however, asks that Physicians' claims be dismissed under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). EPA first argues that Physicians lack standing and their claims are not ripe. EPA also claims that Physicians are outside the zone of interests protected by the conflict of interest statute and OGE regulations, and those authorities do not apply because the Directive is an appointment policy, not an ethics rule. So EPA argues that the conflict of interest statute and regulations provide no meaningful standard against which to judge EPA's exercise of its discretion, making Counts I and II unreviewable. Count III is nonjusticiable, EPA asserts, because Sections 5(b)(2) and 5(b)(3) of FACA provide no meaningful standard for judicial review. Finally, EPA maintains that Count IV fails under Rule 12(b)(6), because Physicians have failed to allege a violation of any specific statutory requirement for membership on EPA advisory committees.

II. LEGAL STANDARDS

A motion for dismissal under Rule 12(b)(1)"presents a threshold challenge to the court's jurisdiction." Haase v. Sessions , 835 F.2d 902, 906 (D.C. Cir. 1987). To survive a motion to dismiss under Rule 12(b)(1), plaintiffs bear the burden of showing jurisdiction by a preponderance of the evidence. See Lujan v. Def. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The court must accept as true all factual allegations in the complaint and draw...