Young v. United States Envtl. Prot. Agency
| Decision Date | 30 September 2022 |
| Docket Number | Civil Action 21-2623 (TJK) |
| Parties | S. STANLEY YOUNG et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Plaintiffs Dr. S. Stanley Young and Dr. Louis Anthony Cox, Jr. challenge the Environmental Protection Agency's efforts to reconstitute several advisory committees that advise the agency on, among other things, particulate matter air quality standards. They say, essentially, that the EPA has unlawfully purged these committees to allow the Biden administration to pursue policies on climate change that the committees' previous membership had thwarted. More specifically, they allege that the reconstituted committees violate the Federal Advisory Committee Act, which requires that their memberships be “fairly balanced” and free of “inappropriate influence” by the appointing authority. And they assert that the EPA violated the Administrative Procedure Act when it reconstituted the committees. Plaintiffs move for partial summary judgment as to one of the committees, and Defendants cross-move. Lurking in the background of the parties' dispute is the legality and propriety of the regulations that the Biden administration is pursuing on air quality standards for particulate matter. But challenges to those regulations are not before the Court. For the reasons explained below, the Court will deny Plaintiffs' motion, grant Defendants' cross-motion, and enter partial judgment in Defendants' favor.
In March 2021, the EPA Administrator announced that he was reconstituting two advisory committees subject to the Federal Advisory Committee Act (“FACA”): the Clean Air Scientific Advisory Committee (“the Committee”) and the Science Advisory Board (“the Board”).[1] Plaintiffs, who have significant industry experience, sought membership on both the Committee and the Board but ultimately were not selected when the new members were announced in June 2021. ECF No. 17 ¶ 6. Before the committees were reconstituted, Dr. Young had served on the Board but not the Committee; Dr. Cox had served on both the Committee and the Board. Id. One week before disclosing the new Committee members, the EPA announced it would reconsider its December 2020 decision not to revise the National Ambient Air Quality Standards (NAAQS) for particulate matter. ECF No. 17 ¶ 59; ECF No. 17-6.
In October 2021, Plaintiffs sued the EPA, its Administrator, the two committees, and several committee members. They allege that the reconstitution of these committees violated FACA and the Administrative Procedure Act (“APA”) and that they were injured because the Administrator denied them a fair opportunity to compete for membership.[2] See ECF No. 17. Specifically, they allege that the reconstituted Committee and Board are “unfairly balanced” and not “protected from inappropriate influence,” each in violation of FACA.[3] Id. ¶ 7. Plaintiffs also claim that the Administrator's decision to reconstitute the committees was arbitrary and capricious in several ways, in contravention of the APA. Id. ¶ 8, 98. For relief, they seek a permanent injunction and writ of mandamus enjoining the committees “from conducting any committee activities” and prohibiting the EPA and the Administrator from “receiving, relying on, or otherwise using any report, advice, or other action” from them. Id. at 53. They also seek an order requiring the EPA to reconstitute both committees in compliance with FACA. Id.
Plaintiffs moved for a preliminary injunction and for partial summary judgment as to their claims about the Committee only (Counts V-VIII). ECF No. 8. Defendants opposed and crossmoved for partial summary judgment. ECF No. 20. The Court denied the motion for a preliminary injunction but reserved judgment on the summary judgment motions. See Young v. U.S. EPA, No. 21-cv-2623 (TJK), 2022 WL 474145, at *5 (D.D.C. Feb. 16, 2022). Since then, the Committee has met, deliberated about the NAAQS for particulate matter, and voted to adopt more stringent standards. ECF No. 33, 34. More recently, the EPA transmitted a proposed rule adopting those standards to the White House for its review. ECF No. 36. According to Defendants, any final rule will not go through the required notice and comment procedures and be implemented until at least spring 2023. See ECF No. 8-22 at 3.
Under Federal Rule of Civil Procedure 56, a court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Summary judgment is appropriately granted when, viewing the evidence in the light most favorable to the non-movants and drawing all reasonable inferences accordingly, no reasonable jury could reach a verdict in their favor.” Lopez v. Council on Am.-Islamic Rels. Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016). To survive summary judgment, a party must “go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotation omitted). Courts “are not to make credibility determinations or weigh the evidence.” Lopez, 826 F.3d at 496 (quoting Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006)). But the “mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). If the evidence “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (citations omitted).
The Clean Air Act provides that “any nationally applicable regulations promulgated, or final action taken, by the Administrator under [the Clean Air Act] may be filed only in the United States Court of Appeals for the District of Columbia.” 42 U.S.C. § 7607(b)(1). As a threshold matter, Defendants argue that the Court lacks jurisdiction because Plaintiffs' suit challenges the Administrator's nationally applicable final action under the Clean Air Act. See ECF No. 20-1 at 20-21. Plaintiffs argue that the Administrator's action reconstituting the Committee was taken under FACA, not the Clean Air Act, and that it was not nationally applicable. See ECF No. 22 at 6-7. The Court agrees with Plaintiffs.
The Administrator reconstituted the Committee pursuant to FACA, not under the Clean Air Act. FACA sets the parameters for legislation-such as the Clean Air Act-“authorizing the establishment of any advisory committee.” 5 U.S.C. app. 2 § 5(b). And as the Circuit has explained, “EPA advisory committees . . . are authorized and regulated by [FACA].” Physicians for Soc. Resp. v. Wheeler, 956 F.3d 634, 639 (D.C. Cir. 2020). Thus, Plaintiffs allege that the Administrator's reconstitution of the Committee violated FACA, not the Clean Air Act. In contrast, the cases Defendants cite in support of this argument involve suits alleging that the Administrator took final action beyond the authority provided by the Clean Air Act itself. See, e.g., Harrison v. PPG Indus., Inc., 446 U.S. 578, 580-81 (1980); Royster-Clark Agribusiness, Inc. v. Johnson, 391 F.Supp.2d 21, 23 (D.D.C. 2005). At bottom, the Court is aware of no authority for the proposition that district courts lack jurisdiction over a FACA challenge to an EPA committee. Rather, other courts in this district, as well as the Circuit, have considered FACA challenges to such committees without dismissing on these grounds. See, e.g., Physicians for Soc. Resp. v. Wheeler, 359 F.Supp.3d 27, 44 (D.D.C. 2019), rev'd on other grounds, 956 F.3d 634 (D.C. Cir. 2020).
Defendants also argue that FACA's provisions that apply to the Committee are nonjustici-able under the APA, which provides Plaintiffs' their only cause of action for their FACA claims.
The APA precludes judicial review of “agency action . . . committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). The Supreme Court has recognized two scenarios in which agency action is unreviewable under this provision. The first pertains to “certain categories of administrative decisions that courts traditionally have regarded as ‘committed to agency discretion.'” Lincoln v. Vigil, 508 U.S. 182, 191 (1993). This scenario includes the “paradigmatic example” of prosecutorial discretion as well as, for example, an agency's determination of how to allocate resources. Physicians for Soc. Resp., 956 F.3d at 642. The second scenario involves agency action that is “presumptively reviewable,” id., but that is ultimately insulated from review because the relevant statutes are drawn “in such broad terms that . . . there is no law to apply,” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971).
Relevant here, FACA requires, first, that legislation establishing an advisory committee “require the membership of the advisory committee to be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee.” 5 U.S.C. app. 2 § 5(b)(2). Second, FACA also requires that any such legislation “contain appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing...
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