Union of Concerned Scientists v. Wheeler
| Decision Date | 27 March 2019 |
| Docket Number | Civil Action No. 18-10129-FDS |
| Citation | 377 F.Supp.3d 34 |
| Parties | UNION OF CONCERNED SCIENTISTS and Elizabeth Anne Sheppard, Plaintiffs, v. Andrew WHEELER, as Administrator of the Environmental Protection Agency, and United States Environmental Protection Agency, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Jamila Benkato, Pro Hac Vice, Protect Democracy Project, Lindsay C. Harrison, Pro Hac Vice, Samuel C. Birnbaum, Pro Hac Vice, Jenner & Block LLP, Washington, DC, Justin Florence, The Protect Democracy Project, Inc., Cambridge, MA, for Plaintiffs.
Annapurna Balakrishna, U.S. Attorney's Office, Boston, MA, Daniel Bensing, James R. Powers, U.S. Dept. of Justice, Civil Divison, Washington, DC, for Defendants.
MEMORANDUM AND ORDER ON MOTION TO DISMISS
This is an action arising out of a directive by the Environmental Protection Agency that prohibits scientists in receipt of certain EPA grants from serving on the agency's federal advisory committees. The complaint alleges that the directive was arbitrary and capricious in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 - 706.
Defendants have moved to dismiss the complaint for lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1), on grounds of lack of standing, finality, ripeness, and justiciability, and for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6).
It is perhaps worth noting at the outset what this case does not involve. It is not about the best way to develop and implement our national environmental policies, or who are the proper people to assist in that process. And of course it is not about the wisdom or effectiveness of those policies. Rather, this case involves a fairly narrow set of issues: in substance, whether a specific EPA conflict-of-interest directive violates federal law, and whether plaintiffs are the proper parties to assert such claims. Based on established federal law, and for the reasons set forth below, the challenged directive is not subject to judicial reversal, and accordingly the complaint will be dismissed.
Unless otherwise noted, the following facts are drawn from the complaint, documents referred to in the complaint, and accompanying exhibits.
The Environmental Protection Agency is the principal agency of the federal government tasked with protecting the environment. (Compl. ¶ 19). In furtherance of its mission, the EPA administers grants, some of which fund scientific research. (Id. ¶¶ 34, 36). Thousands of these grants are awarded to individuals or groups affiliated with public institutions of higher learning, private universities, and not-for-profit organizations. (Id. ).
To help guide its decision-making, the EPA receives counsel on scientific and policy matters from almost two dozen federal advisory committees ("FAC"), including the Science Advisory Board ("SAB"), the Board of Scientific Counselors ("BSC"), and the Clean Air Scientific Advisory Committee ("CASAC"). (Id. ¶¶ 3, 25-26). FACs are typically composed of scientists and other experts affiliated with universities, not-for-profit research institutions, private industry, and local governments. (Id. ¶¶ 5-6, 28).
EPA FAC members are appointed by the Administrator of the EPA. (Id. ¶ 28). They typically serve a term of a defined length, usually two or three years, but are eligible to be reappointed to a second term. (Id. ). FAC participation offers scientists an opportunity to help shape public policy. (Id. ¶ 32). Some FAC members are also paid for their work. (Id. ).
Like other agency heads, the EPA Administrator has broad discretion over the appointment of FAC members. By regulation, 41 C.F.R. § 102-3.130(a).
Some constraints on FAC composition are imposed by statute. For present purposes, the most significant limitations are imposed by the Federal Advisory Committee Act ("FACA"), which requires, among other things, that committee membership be "fairly balanced in terms of the points of view represented and the functions to be performed." See 5 U.S.C. App. 2 § 5(b)(2). FACA further requires committees to be free from "inappropriate[ ] influence[ ] by the appointing authority or by any special interest."See 5 U.S.C. App. 2 § 5(b)(3).1
Because some FAC members are scientists associated with universities and not-for-profit research institutions, some FAC members are also recipients of EPA grants that have been awarded to their universities and institutions. (Compl. ¶¶ 29, 31, 34).
The Union of Concerned Scientists ("UCS") is a not-for-profit organization with a self-described mission of conducting scientific analysis and research in the public interest and representing the interests of the scientific community. (Id. ¶ 10). Its "core mission" is to advance and support the interests of the scientific community in government. (Id. ¶ 11). It also seeks to advance the interests of its individual members and members of its Science Network, a membership organization of individuals within USC. (Id. ¶ 12). Many of those members either currently hold a grant from the EPA or serve on a FAC, or plan to apply for a grant or seek to serve on a FAC in the future. (Id. ).
On October 31, 2017, then-EPA Administrator E. Scott Pruitt issued a directive titled "Strengthening and Improving Membership on EPA Federal Advisory Committees." . The directive stated that "[i]n order to strengthen and improve the independence, diversity and breadth of participation on EPA federal advisory committees," the EPA "shall, consistent with applicable laws and regulations, apply ... [four] principles and procedures when establishing the membership of such committees." (Ex. A). The first principle—and the only one at issue in this case—is entitled "Strengthen Member Independence." (Id. ). It provides that FAC "[m]embers shall be independent from EPA, which shall include a requirement that no member of an EPA federal advisory committee be currently in receipt of EPA grants, either as principal investigator or co-investigator, or in a position that otherwise would reap substantial direct benefit from an EPA grant." (Id. ).2 The second, third, and fourth principles direct the agency to increase participation in FACs from state, tribal, and local government officials; increase membership from historically unrepresented or underrepresented states and region ("Enhance Geographic Diversity"); and regularly rotate membership ("Promote Fresh Perspectives"). (Id. ).
Dr. Elizabeth Anne Sheppard is Professor and Assistant Chair of Environmental and Occupational Health Sciences and Professor of Biostatistics at the University of Washington. (Compl. ¶ 15). She is one of the seven members of CASAC. (Id. ). She is currently serving a three-year term on CASAC and is eligible for reappointment to an additional term when her current term concludes. (Id. ). Before the directive was issued, she simultaneously served on CASAC and was the recipient of a $ 3 million EPA grant. (Id. ¶ 16). As a result of the directive, she was forced to give up her role as co-investigator on the grant and has not sought EPA grant funding for any future research. (Id. ¶¶ 16, 66-69). The complaint alleges that if the directive were rescinded, it is likely she would reassume her role as co-investigator, or otherwise seek EPA grant funding, while continuing to serve on CASAC. (Id. ¶¶ 17-18). She wishes to be considered for EPA research grant funding in the future and continue serving on CASAC. (Id. ¶ 18). She is paid for her work on CASAC, and also views her participation as an important form of public service. (Id. ¶¶ 18, 32).
Defendants have moved to dismiss the complaint for lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1), on grounds of lack of standing, finality, ripeness, and justiciability, and for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6).
On a motion to dismiss for lack of subject matter jurisdiction made pursuant to Fed. R. Civ. P. 12(b)(1), " ‘the party invoking the jurisdiction of a federal court carries the burden of proving its existence."
Murphy v. United States , 45 F.3d 520, 522 (1st Cir. 1995) (quoting Taber Partners, I v. Merit Builders, Inc. , 987 F.2d 57, 60 (1st Cir. 1993) ). When ruling on a 12(b)(1) motion the court "must credit the plaintiff's well-[pleaded] factual allegations and draw all reasonable inferences in the plaintiff's favor." Merlonghi v. United States , 620 F.3d 50, 54 (1st Cir. 2010).
On a motion to dismiss for failure to state a claim made pursuant to Fed. R. Civ. P. 12(b)(6), the court "must assume the truth of all well-plead[ed] facts and give ... plaintiff the benefit of all reasonable inferences therefrom." Ruiz v. Bally Total Fitness Holding Corp. , 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino , 175 F.3d 75, 77 (1st Cir. 1999) ). To survive a motion to dismiss, the complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In other words, the "[f]actual allegations must be enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555, 127 S.Ct. 1955 (citations omitted). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). Dismissal is appropriate if...
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