Young v. United States Envtl. Prot. Agency

Decision Date16 February 2022
Docket NumberCivil Action 21-2623 (TJK)
CourtU.S. District Court — District of Columbia


S Stanley Young and Louis Anthony Cox, Jr. challenge the Environmental Protection Agency's efforts to reconstitute several advisory committees that, among other things, advise the agency on particulate matter air quality standards. Plaintiffs were nominated for positions on the reconstituted committees but ultimately were not selected. The two now allege, among other things, that the reconstituted committees violate the Federal Advisory Committee Act's requirement that advisory committee memberships be “fairly balanced” because there is no “industry representative” on the committees. They seek a preliminary injunction halting the activities of one committee, arguing that Young will suffer irreparable harm-the inability to participate in that committee's deliberations-if the committee moves forward and meets late next week. For the reasons explained below, the Court holds that Plaintiffs have failed to establish that Young will suffer irreparable harm absent a preliminary injunction. The Court will therefore deny the motion for a preliminary injunction.

I. Background
A. Federal Advisory Committee Act

Federal agencies often rely on advisory committees, boards, and commissions to perform statutorily prescribed functions. In 1972, Congress enacted the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. 2 § 5, to establish standard operating procedures for advisory committees and to ensure accountability to Congress and the public. See Pub. Citizen v. Dep't of Justice, 491 U.S. 440, 445-46 (1989). At its core, FACA aimed to eliminate “wasteful expenditure of public funds for worthless committee meetings and biased proposals.” Id. at 453.

FACA requires qualifying advisory committees to meet certain standards. Relevant here, FACA requires that legislation establishing an advisory committee must set forth certain criteria for the committee's membership. Any such legislation must “require the membership of the advisory committee to be 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). In addition, establishing legislation must “contain appropriate 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).

B. Clean Air Scientific Advisory Committee

Defendant Environmental Protection Agency (“EPA”) employs several advisory committees subject to FACA to aid in its statutorily required responsibilities.[1] The Clean Air Act requires the EPA to “complete a thorough review of the . . . national ambient air quality standards” every five years. 42 U.S.C. § 7409(d)(1). To facilitate this review, Congress directed the EPA Administrator to create an “independent scientific review committee.” Id. § 7409(d)(2)(A). The committee must have seven members, “including at least one member of the National Academy of Sciences, one physician, and one person representing State air pollution control agencies.” Id. To satisfy this requirement, the EPA Administrator created the Clean Air Scientific Advisory Committee (“the Committee”).[2] The Committee is charged with advising the EPA Administrator on new air quality standards and proposed revisions to existing ones. To fulfill this role, the Committee reviews policy assessments, scientific reports, and other analyses prepared by the EPA staff and provides its recommendations to the EPA Administrator.

When vacancies on the Committee arise, the EPA staff solicits nominations from the public and entertains public comment on nominees. See ECF No. 19-1 ¶¶ 7, 15. The EPA staff then reviews and considers the candidates and makes recommendations to the EPA Administrator for final selections. See id. ¶¶ 7, 11, 15. Relevant here, the EPA Administrator reconstituted the entire Committee in March 2021, dismissing all members. The EPA staff then solicited nominations and received 115 candidate nominations and 88 public comments for the vacant Committee spots. Id. ¶ 15. Young was nominated for Committee membership but ultimately was not selected as a member or an alternate. Id.

C. This Suit and Plaintiffs' Motion for Preliminary Injunction

This suit arises from an alleged failure of the selection process to yield advisory committees that comply with FACA and to comply with the Administrative Procedure Act (“APA”). In March 2021, the EPA Administrator removed the members of the Committee and the Science Advisory Board (“the Board”), another advisory committee subject to FACA, and announced they would be reconstituted. See ECF No. 17 ¶ 6. Several months later, the EPA Administrator selected new members for both the Committee and the Board. Young and Cox were each nominated for service on both the Committee and the Board, but neither received an appointment to either advisory body. See id. ¶¶ 13, 19. Before the reconstitution of both advisory committees, Young had served on the Board but not the Committee. Cox had served on both the Committee and the Board. See id.

Plaintiffs allege in the amended complaint that the reconstitution of the Committee and the Board violates FACA's “fairly balanced” requirement, as well as the APA, because neither committee now has an “industry representative” in its ranks.[3] ECF No. 17 ¶¶ 1, 9. Plaintiffs also argue that several members of the Committee have conflicts of interest that violate FACA and that the decision to reconstitute both committees was arbitrary and capricious. See id ¶ 93-96. Notably, neither Young nor Cox claim in the amended complaint that they are personally entitled to serve on the Committee or the Board. The amended complaint alleges only that the Board and Committee are unlawful as currently constituted and that Plaintiffs were deprived of opportunities to compete fairly for membership. See id. ¶¶ 69-75.

Plaintiffs have moved for a preliminary injunction and for partial summary judgment on only Young's claims related to the Committee. In the motion, they reiterate their claims that the EPA's reconstitution of the Committee violates FACA and the APA, and that “scientists with industry experience like [Young] have different perspectives and points of view” compared to the Committee's current members. ECF No. 8-5 ¶ 18. Along with those substantive claims about the Committee's composition, they explain in greater detail that Young was injured when the EPA refused to “fairly adjudicate” his Committee nomination during the selection process, a misstep that he claims “necessarily precluded him from participating in the Committee's imminent deliberations.” ECF No. 8-1 at 45. Notably, Plaintiffs offer no specific proof that the EPA refused to adjudicate Young's nomination fairly other than the new makeup of the Committee.

Plaintiffs also say that Young will suffer irreparable harm absent an injunction because he “will forever lose the opportunity to influence the EPA as a member of the Committee on this matter of significant national importance” if the Committee proceeds to meet without him. Id. at 43-44. By way of background, the Committee is set to review particulate matter air quality standards at meetings on February 25, 28, and March 4, 2022, which it does every five years. Plaintiffs seek a preliminary injunction enjoining the Committee “from conducting any committee or subcommittee activities” and enjoining the EPA and EPA Administrator from “receiving any recommendation or advice from the Committee.” ECF No. 8-26 at 1. Defendants have opposed and cross-moved for partial summary judgment. See ECF No. 19.

II. Legal Standard

A preliminary injunction is an “extraordinary remedy” and is “never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20. This Circuit's precedent states that these factors may be evaluated on a “sliding scale, ” and that “an unusually strong showing on one of the factors” may compensate for a subpar showing on another. Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009) (cleaned up). But after Winter, the Circuit has suggested without deciding that a plaintiff must independently establish both likelihood of success on the merits and irreparable harm. See, e.g., Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011).

Even so, showing irreparable harm is a “non-negotiable hurdle[].” Cal. Ass'n. of Private Postsecondary Schools v. Devos (CAPPS), 344 F.Supp.3d 158, 167 (D.D.C. 2018). “A movant's failure to show any irreparable harm is . . . grounds for refusing to issue a preliminary injunction, even if the other three factors entering the calculus merit such relief.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). At the preliminary injunction stage, a plaintiff may rely on “evidence that is less complete than in a trial” but “bears the responsibility of producing credible evidence sufficient to demonstrate entitlement to injunctive relief.” CAPPS, 344 F.Supp.3d at 166-67 (cleaned up).

III. Analysis

“Young fails to establish that he will suffer irreparable harm absent a preliminary injunction halting the Committee from meeting at the end of next week. The...

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