Union of Concerned Scientists v. EPA, 954 F.3d 11

Background

In October 2017 EPA Administrator E. Scott Pruitt issued a directive barring individuals who are currently recipients of EPA grants (except state, tribal, or local government grantees) from serving on EPA federal advisory committees.
EPA advisory committees (22 total at the time; 9 statutorily established) historically allowed grant recipients to serve and employed conflict-of-interest and OGE ethics procedures.
Plaintiffs Union of Concerned Scientists and Dr. Elizabeth Sheppard (an academic who relinquished an EPA grant to remain on CASAC) sued, alleging the directive (1) violated the Administrative Procedure Act (APA) as arbitrary and capricious, and (2) violated the Federal Advisory Committee Act (FACA) by upsetting committees’ fair balance and inviting inappropriate special-interest influence.
The district court dismissed all counts for lack of justiciability and failure to state a claim; plaintiffs appealed as to Counts I, III, and IV.
The First Circuit held that the FACA-based APA claims (Counts III and IV) are judicially reviewable and plausibly pleaded, reversed the district court as to those counts, and remanded for further proceedings; it dismissed Count I as a free-standing claim but permitted its substantive concerns to be considered as part of Counts III and IV.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the EPA directive is reviewable under the APA (§701(a)(2) discretion carve-out)	APA review is available; FACA supplies meaningful standards to judge agency action	Agency discretion over advisory committees is committed to the agency and thus unreviewable	Reviewable: §701(a)(2) is narrow (Dep't of Commerce v. New York); FACA supplies judicially manageable standards for review
Whether the directive violates FACA's "fair balance" requirement (5 U.S.C. App. 2 §5(b)(2))	Directive skewed committees toward industry by excluding many academic/nonprofit experts who receive grants; this plausibly upsets fair balance	Agency has broad discretion to shape committees; fair-balance standard is too vague to review	Plaintiffs plausibly state a claim; remand for merits and record development
Whether the directive violates FACA's prohibition on "inappropriate influence" (5 U.S.C. App. 2 §5(b)(3))	Excluding grant recipients increased relative influence of regulated industry and the agency failed to rationally justify that effect	Same nonjusticiability and discretion arguments	Plaintiffs plausibly state a claim; remand for further proceedings
Whether a standalone APA arbitrary-and-capricious claim (Count I) is independently reviewable	APA §706(2)(A) suffices to review agency reasoning	§706(2)(A) alone cannot supply the meaningful standard required by Chaney; review must rest on another law (e.g., FACA)	Dismissed as a freestanding claim; its procedural/reasoning arguments are subsumed in the FACA-based claims (Counts III & IV)

Key Cases Cited

Dep't of Commerce v. New York, 139 S. Ct. 2551 (2019) (§701(a)(2) exception is narrow and agency actions are reviewable where statutes furnish meaningful standards)
Heckler v. Chaney, 470 U.S. 821 (1985) (agency decisions "committed to agency discretion" are unreviewable when no judicially manageable standards exist)
Lincoln v. Vigil, 508 U.S. 182 (1993) (identifies categories traditionally committed to agency discretion)
Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (APA arbitrary-and-capricious standard and review of agency reasoning)
Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440 (1989) (FACA's purpose to enhance accountability and limit agency discretion over advisory committees)
Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361 (2018) (courts may review agency action even where statute confers broad discretion)
Bennett v. Spear, 520 U.S. 154 (1997) (procedural requirements for agency decisionmaking are reviewable)
Atieh v. Riordan, 727 F.3d 73 (1st Cir. 2013) (applying arbitrary-and-capricious standard in APA review)