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.
No. 19-1383
United States Court of Appeals For the First Circuit
March 23, 2020
Torruella, Lynch, and Kayatta, Circuit Judges.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. [Hon. F. Dennis Saylor IV, U.S. District Judge]
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, Lynne I. Dzubow, and the Emmett Environmental Law & Policy Clinic, Harvard Law School, were on brief for amici
Jeffrey E. Sandberg, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice, with whom Joseph H. Hunt, Assistant Attorney General and Mark B. Stern, Attorney, Appellate Staff, Civil Division were on brief, for appellees.
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
Committee membership decisions are largely left to agency discretion, see
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
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.
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.
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.,
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
The district court dismissed all the counts, finding that they raised questions unreviewable under the APA and, alternatively, that the first and second counts failed to state a claim on the merits. Union of Concerned Scientists v. Wheeler, 377 F. Supp. 3d 34, 43-49 (D. Mass. 2017). The plaintiffs now appeal the district court‘s dismissal of Counts I, III, and IV.
II.
This court reviews a grant of a motion to dismiss, see
A.
Congress enacted FACA in substantial part to “provide uniform standards for the creation, operation, and management of [advisory] committees.” S. Rep. No. 92-1098, at 1 (1972) (statement of purpose). The Act followed on the heels of a disclosure that “the [Office of Management and Budget], without statutory authority, had established close liaison with an Advisory Council on Federal Reports (ACFR) composed entirely of business officials from each of the major industries” but not “consumer, labor, []or small business representatives.” Id. at 2. The statute itself requires a committee‘s implementing legislation to “require the membership of [any] advisory committee to be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee.”
Each of the three counts that plaintiffs press on appeal describes the EPA‘s issuance of the Directive as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Collectively, they offer three reasons why this is so: the directive violates FACA‘s fair balance provision (Count III); the directive violates FACA‘s inappropriate influence provision (Count IV); and the EPA offered no rational explanation for adopting the directive, especially given that it changed prior policy (Count I). We address first Counts III and IV, the APA claims predicated on violations of FACA.
1.
FACA contains no private right of action. The APA, however, generally provides a vehicle for reviewing agency decisions that are alleged to violate federal law. See Cowels v. Fed. Bureau of Investigation, 936 F.3d 62, 66 (1st Cir. 2019) (“The [APA] waives federal sovereign immunity for suits alleging injury by agency action.“) (citing
Two months after the district court issued its judgment in this case, the Supreme Court issued an opinion emphasizing that the § 701(a)(2) exception to the presumption of reviewability is “quite narrow[].” Dep‘t of Commerce v. New York, 139 S. Ct. 2551, 2568 (2019). In New York, the Court explained that the Census Bureau‘s decision to include a question about citizenship on the 2020 census was reviewable for its compliance with the Census Act. Id. at 2567-69. The Court explained that “the taking of the census is not one of those areas traditionally committed to agency discretion.”
The Court also determined that the Census Act was not “drawn so that it furnishe[d] no meaningful standard” to apply. New York, 139 S. Ct. at 2568-69. Despite the fact that the Act “confer[red] broad authority on the Secretary,” including “instruct[ing] him to take ‘a decennial census of population’ in ‘such form and content as he may determine,‘” it also set out standards to guide the content of the Census (including “the extent to which . . . statistical sampling” could be used and methods of collecting information).
We apply the teaching of New York to the case before us. First, as to whether the make-up of agency advisory committees is an area traditionally left to agency discretion, the EPA has pointed us to nary a case that would suggest as much. It simply argues that advisory committee policies involve “the ‘complicated balancing of a number of factors which are peculiarly within [the agency‘s] expertise,‘” quoting Vigil, 508 U.S. at 191. But that
Second, as to whether FACA furnishes any meaningful standards that a reviewing court can apply, we train our attention on FACA‘S fair balance and inappropriate influence standards. The EPA claims that neither standard is “[j]udicially [m]anageable,” because, according to the EPA, neither offers a “meaningful standard against which to judge the agency‘s exercise of discretion,” quoting Chaney, 470 U.S. at 830.
We disagree with the EPA that courts are not well equipped to enforce at least the outer boundaries of ranges of
There are certainly many different points of view that the EPA might take into account in forming its committees and different balances that can be struck in a committee‘s membership. Nevertheless, FACA clearly requires agency heads at least to consider whether new restraints on committee membership might inappropriately enhance special interest influence and to eschew such restraints when they do so. That requirement is at least as manageable as the requirements set out in the Census Act. See New York, 139 S. Ct. at 2568-69. The concepts of fairness, balance, and influence are not foreign to courts, and we are certainly capable of reviewing agency actions with reference to those concepts in at least some factual scenarios.
The EPA‘s position also ignores the important point that the APA provides for judicial review of both procedure and substance. See
Here, the EPA has admittedly changed a long-standing practice. And it has done so in a manner that the complaint plausibly describes as altering the balance and the role of special interest influence on EPA advisory committees. Plaintiffs also contend that the agency‘s justification for increasing the relative role of special interests is itself irrational and refuted by the agency‘s targeting of only EPA grant recipients who are not affiliated with states, local governments, or tribes. In this context, FACA‘s standards tell us what Congress intended the EPA to consider, and the APA‘s reasoned decision-making standards tell
We acknowledge that there is some dispute among our sister circuits on this question of whether FACA‘s fair balance and inappropriate influence provisions are reviewable under the APA. Our approach here accords with the majority view.6 And in any case, the contrary decisions were made before the Supreme
In sum, FACA requires the EPA to maintain a fair balance on its committees and to avoid inappropriate influences by both the appointing authority and any special interest. Plaintiffs allege that the directive skewed the composition of EPA committees in favor of regulated industries. They further allege that the EPA offered no rational reason for finding that any benefits of the policy justified the alteration of balance and influence on the committees. Indeed, the allegation is that the EPA did not even acknowledge that the directive had such an effect. These allegations plausibly state claims for judicial review under the APA. So we remand this case to the district court for further proceedings on Counts III and IV.7
2.
Unlike Counts III and IV, Count I alleges violations of only the APA itself. It specifically relies on
An agency decision fails to pass this test if the administrative record reveals that “the
agency relied on improper factors, failed to consider pertinent aspects of the problem, offered a rationale contradicting the evidence before it, or reached a conclusion so implausible that it cannot be attributed to a difference of opinion or the application of agency expertise.”
Atieh v. Riordan, 727 F.3d 73, 75-76 (1st Cir. 2013) (quoting Assoc‘d Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997)); see also Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Claims under § 706(2)(A) are subject to the same limits on reviewability set forth at § 701(a), see Chaney, 470 U.S. at 828, and the EPA argues that Count I is not reviewable for largely the same reasons as Counts III and IV.
The principal difference between Count I and Counts III and IV is that Count I alleges a violation of the reasoned decision-making standards of the APA alone. The EPA thus argues that § 706(2)(A) does not itself provide the “meaningful standard” required for review under Chaney, 470 U.S. at 830. See Lunney v. United States, 319 F.3d 550, 559 n.5 (2d Cir. 2003) (“We . . . note that the APA‘s ‘arbitrary and capricious’ standard, see
The plaintiffs counter that they can rely wholly on § 706(2)(A) to provide a standard for review, citing Robbins v. Reagan, 780 F.2d 37 (D.C. Cir. 1985). Even Robbins, however, relied on external standards:
While the absence of clear statutory guidelines might at times hamper a court‘s ability to deem agency action contrary to law, it need not always do so. Even where there are no clear statutory guidelines, courts often are still able to discern from the statutory scheme a congressional intention to pursue a general goal.
We are unable to locate any case in which we have decided a claim under § 706(A)(2) without the benefit of an additional set of statutory or regulatory requirements to guide us in assessing the propriety of an agency‘s procedures in a matter. While we have not clearly defined the outer limits of the types of “law” that may furnish meaningful standards for deciding claims under § 706(2)(A), see Cowels, 936 F.3d at 66-67 (declining to decide whether the FBI‘s National DNA Index System Manual was sufficient to provide law to apply), statutes constraining or guiding the relevant agency‘s discretion surely qualify if they create “judicially manageable standards,” as required by § 701(a)(2), Chaney, 470 U.S. at 830; see, e.g. City of Taunton v. EPA, 895 F.3d 120, 124-29 (1st Cir. 2018), cert. denied, 139 S. Ct. 1240 (2019) (relying on the Clean Water Act to guide a claim under § 706(A)(2)).
Whether a court could entertain a so-called “pure APA” action without reference to another substantive statute is a question we need not and do not decide. The thrust of plaintiffs’ claim is that the challenged EPA action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law precisely because the EPA failed to rationally consider and explain the effects of the directive under FACA‘s standards. The plaintiffs do cite as background other statutes and regulations erecting committees and setting out a baseline ethics regime, including
Ultimately, the outcome of this litigation will turn on the resolution of APA review under Counts III and IV, which incorporate the plaintiffs’ complaints about the EPA‘s decision-making process. That is, Counts III and IV are APA claims and plaintiffs point us to no fact or theory that could be considered under Count I but not Counts III and IV. Cf. Cousins v. Sec‘y of the U.S. Dep‘t of Transp., 880 F.2d 603, 605-07 (1st Cir. 1989)
B.
The EPA also argues that the plaintiffs’ claims are not ripe because the plaintiffs have not shown that the directive has actually excluded scientists affiliated with academic and nonprofit institutions in a way that has caused or will cause imbalance on the committees. The EPA acknowledged at oral argument, however, that after the directive went into effect, committee members including plaintiff Sheppard had to choose
The EPA seems also to make a mootness argument along the lines that, now that Sheppard‘s term of service on the CASAC has ended, she no longer faces the choice created by the directive. But the plaintiffs have argued that historically committee members have served multiple terms of service. And in any case, the plaintiffs seek declaratory judgment. If they are successful and the EPA is forced to abandon the directive, grant recipients will again be permitted to sit on the EPA‘s committees. So long as there is some “concrete interest, however small, in the outcome . . . , the case is not moot.”
III.
For the foregoing reasons, we reverse the district court‘s decision on Counts III and IV, and remand for further proceedings consistent with our decision, which should include the dismissal of Count I without prejudice to further proceedings on Counts III and IV.