A panel of the U.S. Court of Appeals for the 1st Circuit found that an EPA directive that recast procedures for selecting members for the Agency’s 22 science committees violated federal law. Issued by former EPA Administrator Scott Pruitt in October 2017, the directive’s most controversial element prohibited committee membership to recipients of EPA grants. In a memo accompanying the directive, Pruitt said the new policy was intended to ensure that committee members were independent and free of “financial entanglements” with the EPA.

In its opinion, the panel notes that some members affiliated with academic institutions and not-for-profit organizations have given up their grants to remain on committees, but others have not been able to do so, and their memberships have ended. One result of their departure is that the membership of individuals associated with industry has “quickly and materially increased,” says the panel. For example, since issuance of the directive, the number of industry-affiliated members on the Agency’s Science Advisory Board (SAB) has tripled.

In a complaint, the Union of Concerned Scientists and Elizabeth Anne Sheppard argued before the U.S. District Court for the District of Massachusetts that the directive violated the Federal Advisory Committee Act (FACA) and the Administrative Procedures Act (APA). Sheppard is a university environmental health science researcher who gave up her EPA grant to remain on the Agency’s Clean Air Scientific Advisory Committee (CASAC). Sheppard’s term on the CASAC has since concluded. The district court dismissed the complaint because the plaintiffs failed to state a claim and for lack of justiciability (that is, the court said it did not have authority to rule on the complaint). The 1st Circuit panel disagreed, generally explaining that the EPA exceeded the discretion provided to it under the FACA and that the Agency did not engage in reasoned decision-making as required by the APA. Accordingly, the panel reversed the district court’s decision and remanded for further proceeding consistent with its opinion.

The panel writes that it reached its decision by applying the teaching of a 2019 opinion the U.S. Supreme Court wrote in a case that challenged the U.S. Census Bureau’s inclusion of a citizenship question in the 2020 census. While the Supreme Court did not overrule the Census Bureau’s action, it did make important points about the amount of discretion to which executive branch agencies are entitled. Specifically, the Supreme Court ruled that the discretion the Census Act provided to the Census Bureau is reviewable by the courts because it is not “unbounded.” The 1st Circuit panel found that the FACA imposed similar restrictions on the EPA’s discretion.

FACA

The FACA applies to the creation, operation, and management of federal advisory committees. In establishing committees, federal agencies must ensure that membership is fairly balanced in terms of the points of view represented and the functions to be performed by the committee. Agencies must also ensure that a committee’s advice and recommendations are the result of the committee’s independent judgment and are not inappropriately influenced by any special interest. Advisory committees do not participate in EPA grant-making decisions.

The district court did not dispute the EPA’s contention that the makeup of its advisory committees is traditionally left to the Agency’s discretion because committee policies involve “the complicated balancing of a number of factors which are peculiarly within [the Agency's] expertise.” Accordingly, the district court dismissed all four of the counts included in the plaintiffs’ complaint. The plaintiffs appealed decisions on three of those counts to the 1st Circuit.

Three Counts

In Count I, the plaintiffs alleged that the EPA violated the APA by offering no rational explanation for adopting the directive, especially given that it changed prior policy. Count III alleged that the directive violates the FACA's fair balance provision. Count IV alleged that the directive violates the FACA's inappropriate influence provision.

It was necessary for the plaintiffs to include the APA in its complaint because the APA generally provides a vehicle for reviewing agency decisions that are alleged to violate federal law, while the FACA contains no private right of action. Ultimately, the panel agreed with the district court that Count I could not be a free-standing claim, and, since the FACA does provide justiciable standards, decided to treat Count I as subsumed in Counts III and IV.

A legal tool

The EPA’s defense of its committee policy includes the argument that the neither the FACA’s fair balance standard nor its inappropriate influence standard provides a sufficient basis to judge the Agency's exercise of discretion. In other words, the weakness or absence of standards in the FACA deprives the courts of a legal tool to use to rule on the legality of the EPA’s committee policy.

The panel disagreed, stating that it was well-equipped to rule on the legality of the EPA’s committee policy. For example, the panel concedes that there are many different points of view that the EPA might take into account in forming its committees, as well as different balances that can be struck in a committee's membership. Still, the panel continues, the 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.”

Rational decision-making

The panel makes the following additional points:

• The FACA, which became law in 1972, was written to enhance the public accountability of agencies, the panel says, and adds:
• “[W] while agency discretion in handling advisory committees may have been unfettered prior to 1972, FACA itself was the result of Congress's determination that some fetters were needed. Congress mandated that ‘[t]o the extent they are applicable, the guidelines set out in subsection (b) [of FACA] ... shall be followed by ... agency heads.’ This is not the type of language Congress employs to create or preserve an area so traditionally left to agency discretion as to constitute an exception to the normal rule of justiciability.”
• Regarding the APA requirement that an Agency must engage in rational and reasoned decision-making, the panel agreed with plaintiffs 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,” the panel adds.
• The EPA also “seemed to make a mootness argument” given that Sheppard’s term of service has ended. But the panel recognized that, historically, it was common for members to serve multiple terms. “And in any case, the plaintiffs seek declaratory judgment,” the panel states. “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."

Finally, the panel acknowledges that there is some dispute among its sister circuits on the question of whether the FACA's fair balance and inappropriate influence provisions are reviewable under the APA.

“Our approach here accords with the majority view,” states the panel.