Union of Concerned Scientists v. Wheeler, No. 19-1383

Decision Date23 March 2020
Docket NumberNo. 19-1383
Citation954 F.3d 11
Parties UNION OF CONCERNED SCIENTISTS and Elizabeth Anne Sheppard, Plaintiffs, Appellants, v. Andrew WHEELER, in his official capacity as Administrator of the Environmental Protection Agency, and United States Environmental Protection Agency, Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

Zachary C. Schauf, with whom Lindsay C. Harrison, Samuel C. Birnbaum, Julian J. Ginos, Jenner & Block LLP, Washington, DC, Justin Florence, Benjamin L. Berwick, Jamila G. Benkato, and The Protect Democracy Project were on brief, for appellants.

Robert W. Ferguson, Attorney General of Washington, and Kelly T. Wood, Assistant Attorney General, Washington State Attorney General's Office, Counsel for Environmental Protection, were on brief for amici curiae the states of Washington, California, Connecticut, Illinois, Maryland, New Jersey, New York, Oregon, Pennsylvania, the Commonwealth of Massachusetts, and the District of Columbia.

Shaun A. Goho, Seattle, WA, Lynne I. Dzubow, and the Emmett Environmental Law & Policy Clinic, Harvard Law School, were on brief for amici curiae Lynn R. Goldman, Bernard Goldstein, David Michaels, Kenneth Olden, Bob Perciasepe, and Terry Yosie.

Jeffrey E. Sandberg, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice, Washington, DC, with whom Joseph H. Hunt, Assistant Attorney General and Mark B. Stern, Attorney, Appellate Staff, Civil Division, were on brief, for appellees.

Before Torruella, Lynch, and Kayatta, Circuit Judges.

KAYATTA, Circuit Judge.

This case arises from a directive issued by the EPA that prohibits EPA grant recipients -- who are mostly employed by universities and other nonprofit institutions -- from sitting on the EPA's twenty-two scientific advisory committees. A group of scientists affected by the directive complains that the directive violates the Federal Advisory Committee Act (FACA), Pub. Law 92-463, 86 Stat. 770 (1972) and the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., Pub. L. 79–404, 60 Stat. 237 (1946). After the district court dismissed the complaint for a lack of justiciability and failure to state a claim, the plaintiffs timely appealed the dismissal of Counts I, III, and IV. Because the EPA's challenged directive is judicially reviewable under the APA, we reverse in part and remand for further proceedings.

I.

At the time the complaint was filed, the EPA had twenty-two advisory committees, nine of which are established by statute. Those nine include the Clean Air Scientific Advisory Committee ("CASAC"), see 42 U.S.C. § 7409(d)(2)(A), and the Science Advisory Board ("SAB"), see 42 U.S.C. § 4365. The other thirteen are created by presidential directive or by the EPA under its discretionary authority. See 5 U.S.C. app. 2 § 3(2). The general purpose of such advisory committees is to provide "expert advice, ideas, and diverse opinions" to the agency. 5 U.S.C. app. 2 § 2(a).

Committee membership decisions are largely left to agency discretion, see 41 C.F.R. § 102-3.130(a), and agencies have considerable latitude to establish committees' "administrative guidelines and management controls," 5 U.S.C. app. 2 § 8(a). Some EPA committees are subject to more explicit statutory dictates as to their membership. For example, CASAC is required to have "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). SAB's members "shall be qualified by education, training, and experience to evaluate scientific and technical information on matters referred to the Board." Id. § 4365. Advisory committee members are usually appointed for two- or three-year terms and are frequently reappointed.

The EPA's advisory committees have historically been subject to overlapping schemes of ethics checks. See Office of the Inspector General, U.S. EPA, Report No. 13-P-0387, EPA Can Better Document Resolution of Ethics and Partiality Concerns in Managing Clean Air Federal Advisory Committees, at 8–10 (Sept. 11, 2013) [hereinafter "OIG Report"], http://epa.gov/sites/production/files/2015-09/documents/20130911-13-p-0387.pdf. Generally, advisory-committee members, who are considered "special government employees," see 18 U.S.C. § 202(a), are subject to regulations set out by the U.S. Office of Government Ethics ("OGE"). The regulations make clear that each committee member is:

prohibited by criminal statute from participating personally and substantially in an official capacity in any particular matter in which, to his knowledge, he or any person whose interests are imputed to him under [the] statute has a financial interest, if the particular matter will have a direct and predictable effect on that interest.

5 C.F.R. § 2635.402(a) (citing 18 U.S.C. 208(a) ); see also OIG Report, supra, at 8. Some waivers are possible, and there are exemptions. OIG Report, supra, at 8–9. For example, a committee member "may participate in any particular matter of general applicability where the disqualifying financial interest arises from his non-Federal employment ... provided that the matter will not have a special or distinct effect on the employee or employees other than as part of a class." 5 C.F.R. § 2640.203(g). Agencies may add additional ethics rules with OGE's "concurrence." Id. § 2635.105(a).

The EPA has additional conflict-of-interests rules of its own, including internal policies for identifying potential financial conflicts of interest. OIG Report, supra, at 9. Active committee members must complete a conflicts form annually, which requires them to supply information on paid work, assets, funding, and other activities. Id. The forms are reviewed by an ethics officer, and if potential problems are identified the member may be required to "take action to mitigate the concern." Id. 1

The EPA administers several grant programs to fund scientific research, ultimately awarding over $4 billion in grants every year. EPA, EPA Grants Overview for Applicants and Recipients, https://www.epa.gov/grants/epa-grants-overview-applicants-and-recipients; see, e.g., 42 U.S.C. § 7403(b)(3) (Clean Air Act provision authorizing the EPA administrator to make grants); 33 U.S.C. § 1254(b)(3) (Clean Water Act provision authorizing the EPA administrator to make grants). Advisory committees do not participate in the EPA's grant-making decisions. Traditionally, EPA grant recipients have been permitted to serve on advisory committees while they are receiving EPA grants. The EPA's Inspector General explained in 2013 that "[t]he EPA does not consider a prospective or current member's receipt of an agency or other federal research grant to create the basis for a financial conflict of interest." OIG Report, supra, at 9.

So stood matters until October 2017, when the EPA's former director, E. Scott Pruitt, issued a directive called "Strengthening and Improving Membership on EPA Federal Advisory Committees." The directive sets out four principles. The principle labeled "Strengthen Member Independence" is the one to which the plaintiffs object. It reads as follows:

Members 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. This principle shall not apply to state, tribal or local government agency recipients of EPA grants.

The directive is accompanied by a five-page explanatory memo, of which approximately half a page is dedicated to the objected-to principle. It states in pertinent part:

A vital part of ensuring integrity and confidence in EPA's [advisory committees] comes from guaranteeing that [advisory committee] members remain independent of the Agency during their service. EPA [advisory committee] members should avoid financial entanglements with the EPA to the greatest extent possible.
Non-governmental and non-tribal members in direct receipt of EPA grants while serving on an EPA [advisory committee] can create the appearance or reality of potential interference with their ability to independently and objectively serve as a[n advisory committee] member. [Advisory committee] members should be motivated by service and committed to providing informed and independent expertise and judgment.

The memo then otherwise largely repeats the language of the principle on strengthening member independence.

The complaint alleges that the new directive disqualifies "thousands of scientists affiliated with academic and not-for-profit institutions." And precisely because those scientists who receive EPA grants tend to be leaders in their fields, the directive is said to target many of the most knowledgeable scientists who are not affiliated with industry. Some of the scientists have responded by surrendering grants in order to continue serving their country. But, the plaintiffs explain, many cannot make this sacrifice. As a result, the plaintiffs allege that the directive has quickly and materially increased the participation of industry-affiliated scientists on EPA committees. On the SAB, for example, the number of industry-affiliated scientists has tripled.

One of the scientists forced to step off an EPA grant in order to remain a CASAC member was plaintiff Elizabeth Anne Sheppard. Dr. Sheppard teaches environmental health science and biostatistics at the University of Washington. Until the directive issued, she served as co-lead investigator on a $3 million EPA grant for researching health effects of air pollution. She and the Union of Concerned Scientists, a nonprofit organization that describes itself as representing the scientific community, commenced this suit in January 2018. They seek both a declaration that the directive's bar on grant-recipient advisory committee members was unlawful and an injunction against it. The complaint included...

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