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Union of Concerned Scientists v. Wheeler

United States District Court, D. Massachusetts

March 27, 2019

ANDREW WHEELER, as Administrator of the Environmental Protection Agency, and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants.



         This is an action arising out of a directive by the Environmental Protection Agency that prohibits scientists in receipt of certain EPA grants from serving on the agency's federal advisory committees. The complaint alleges that the directive was arbitrary and capricious in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706.

         Defendants have moved to dismiss the complaint for lack of subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1), on grounds of lack of standing, finality, ripeness, and justiciability, and for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6).

         It is perhaps worth noting at the outset what this case does not involve. It is not about the best way to develop and implement our national environmental policies, or who are the proper people to assist in that process. And of course it is not about the wisdom or effectiveness of those policies. Rather, this case involves a fairly narrow set of issues: in substance, whether a specific EPA conflict-of-interest directive violates federal law, and whether plaintiffs are the proper parties to assert such claims. Based on established federal law, and for the reasons set forth below, the challenged directive is not subject to judicial reversal, and accordingly the complaint will be dismissed.

         I. Background

         Unless otherwise noted, the following facts are drawn from the complaint, documents referred to in the complaint, and accompanying exhibits.

         A. Factual Background

         The Environmental Protection Agency is the principal agency of the federal government tasked with protecting the environment. (Compl. ¶ 19). In furtherance of its mission, the EPA administers grants, some of which fund scientific research. (Id. ¶¶ 34, 36). Thousands of these grants are awarded to individuals or groups affiliated with public institutions of higher learning, private universities, and not-for-profit organizations. (Id.).

         To help guide its decision-making, the EPA receives counsel on scientific and policy matters from almost two dozen federal advisory committees (“FAC”), including the Science Advisory Board (“SAB”), the Board of Scientific Counselors (“BSC”), and the Clean Air Scientific Advisory Committee (“CASAC”). (Id. ¶¶ 3, 25-26). FACs are typically composed of scientists and other experts affiliated with universities, not-for-profit research institutions, private industry, and local governments. (Id. ¶¶ 5-6, 28).

         EPA FAC members are appointed by the Administrator of the EPA. (Id. ¶ 28). They typically serve a term of a defined length, usually two or three years, but are eligible to be reappointed to a second term. (Id.). FAC participation offers scientists an opportunity to help shape public policy. (Id. ¶ 32). Some FAC members are also paid for their work. (Id.).

         Like other agency heads, the EPA Administrator has broad discretion over the appointment of FAC members. By regulation, “[u]nless otherwise provided by statute, Presidential directive, or other establishment authority, advisory committee members serve at the pleasure of the appointing or inviting authority. Membership terms are at the sole discretion of the appointing or inviting authority.” 41 C.F.R. § 102-3.130(a).

         Some constraints on FAC composition are imposed by statute. For present purposes, the most significant limitations are imposed by the Federal Advisory Committee Act (“FACA”), which requires, among other things, that committee membership be “fairly balanced in terms of the points of view represented and the functions to be performed.” See 5 U.S.C. App. 2 § 5(b)(2). FACA further requires committees to be free from “inappropriate[ ] influence[ ] by the appointing authority or by any special interest.” See 5 U.S.C. App. 2 § 5(b)(3).[1]

         Because some FAC members are scientists associated with universities and not-for-profit research institutions, some FAC members are also recipients of EPA grants that have been awarded to their universities and institutions. (Compl. ¶¶ 29, 31, 34).

         The Union of Concerned Scientists (“UCS”) is a not-for-profit organization with a self-described mission of conducting scientific analysis and research in the public interest and representing the interests of the scientific community. (Id. ¶ 10). Its “core mission” is to advance and support the interests of the scientific community in government. (Id. ¶ 11). It also seeks to advance the interests of its individual members and members of its Science Network, a membership organization of individuals within USC. (Id. ¶ 12). Many of those members either currently hold a grant from the EPA or serve on a FAC, or plan to apply for a grant or seek to serve on a FAC in the future. (Id.).

         On October 31, 2017, then-EPA Administrator E. Scott Pruitt issued a directive titled “Strengthening and Improving Membership on EPA Federal Advisory Committees.” (Id. ¶¶ 3, 33; Ex. A). The directive stated that “[i]n order to strengthen and improve the independence, diversity and breadth of participation on EPA federal advisory committees, ” the EPA “shall, consistent with applicable laws and regulations, apply . . . [four] principles and procedures when establishing the membership of such committees.” (Ex. A). The first principle-and the only one at issue in this case-is entitled “Strengthen Member Independence.” (Id.). It provides that FAC “[m]embers 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.” (Id.).[2] The second, third, and fourth principles direct the agency to increase participation in FACs from state, tribal, and local government officials; increase membership from historically unrepresented or underrepresented states and region (“Enhance Geographic Diversity”); and regularly rotate membership (“Promote Fresh Perspectives”). (Id.).

         Dr. Elizabeth Anne Sheppard is Professor and Assistant Chair of Environmental and Occupational Health Sciences and Professor of Biostatistics at the University of Washington. (Compl. ¶ 15). She is one of the seven members of CASAC. (Id.). She is currently serving a three-year term on CASAC and is eligible for reappointment to an additional term when her current term concludes. (Id.). Before the directive was issued, she simultaneously served on CASAC and was the recipient of a $3 million EPA grant. (Id. ¶ 16). As a result of the directive, she was forced to give up her role as co-investigator on the grant and has not sought EPA grant funding for any future research. (Id. ¶¶ 16, 66-69). The complaint alleges that if the directive were rescinded, it is likely she would reassume her role as co-investigator, or otherwise seek EPA grant funding, while continuing to serve on CASAC. (Id. ¶¶ 17-18). She wishes to be considered for EPA research grant funding in the future and continue serving on CASAC. (Id. ¶ 18). She is paid for her work on CASAC, and also views her participation as an important form of public service. (Id. ¶¶ 18, 32).

         B. Procedural Background

         Defendants have moved to dismiss the complaint for lack of subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1), on grounds of lack of standing, finality, ripeness, and justiciability, and for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6).

         II. Legal Standard

         On a motion to dismiss for lack of subject matter jurisdiction made pursuant to Fed.R.Civ.P. 12(b)(1), “‘the party invoking the jurisdiction of a federal court carries the burden of proving its existence.” Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995) (quoting Taber Partners, I v. Merit Builders, Inc., 987 F.2d 57, 60 (1st Cir. 1993)). When ruling on a 12(b)(1) motion the court “must credit the plaintiff's well-[pleaded] factual allegations and draw all reasonable inferences in the plaintiff's favor.” Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010).

         On a motion to dismiss for failure to state a claim made pursuant to Fed.R.Civ.P. 12(b)(6), the court “must assume the truth of all well-plead[ed] facts and give . . . plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In other words, the “[f]actual allegations must be enough to raise a right to relief above the speculative level, . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations omitted). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if the complaint fails to set forth “factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.” Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).

         III. Analysis

         Defendants contend that the complaint should be dismissed because (1) plaintiffs lack standing; (2) plaintiffs are challenging a non-final agency action and are asserting claims that are not ripe for review; and (3) plaintiffs are asserting claims that are nonjusticiable because they challenge a matter committed to agency discretion by law without any meaningful standard of review.

         A. Standing

         Standing is a threshold question in every case; “[i]f a party lacks standing to bring a matter before the court, the court lacks jurisdiction to decide the merits of the underlying case.” United States v. AVX Corp., 962 F.2d 108, 113 (1st Cir. 1992). To satisfy the case-or-controversy requirement of Article III of the United States Constitution, plaintiffs bear the burden of establishing that they (1) have suffered an “injury-in-fact” that is “concrete and particularized” and “actual or imminent”; (2) that the injury is “‘fairly traceable' to the actions of the defendant”; and (3) that the injury will likely be redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 162 (1997) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)); Katz v. Pershing, LLC, 672 F.3d 64, 71 (1st Cir. 2012). Those elements must be proved “with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561.

         It is clear that Dr. Sheppard has standing to assert her claims.[3] As a result of the directive, she was forced to give up her role as co-investigator on an $3 million EPA research grant in order to continue serving on CASAC, and has not sought EPA grant funding for any future research. She has therefore suffered an injury in fact that is concrete and particularized, actual and imminent, and fairly traceable to the directive. See Natural Res. Def. Council, Inc. v. Wheeler, 2019 WL 1299938, at *8 (S.D.N.Y. Mar. 21, 2019). Furthermore, her injury is likely to be redressed by the declaratory relief plaintiffs seek: if the directive were rescinded, she would likely reassume her role as co-investigator on the EPA grant that she gave up. Because Dr. Sheppard has standing and because she seeks the same relief as UCS-to have the directive set aside-the court does not need to decide whether UCS has standing in its own right under associational or organizational standing theories, and can assume it does for purposes of this motion. See Tilley v. TJX Companies, Inc., 345 F.3d 34, 36-37 (1st Cir. 2003) (citing Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264 & n.9 (1977)). Accordingly, the complaint alleges sufficient facts to support plaintiffs' claim of standing to challenge the directive, and will not be dismissed on that basis.

         B. Finality and Ripeness

         Defendants next contend that the directive is not a final agency action and that plaintiffs' claims are not ripe for review.

         The starting point for analysis is the waiver of sovereign immunity in the APA. “Under settled principles of sovereign immunity, ‘the United States, as sovereign, is immune from suit, save as it consents to be sued and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'” United States v. Dalm, 494 U.S. 596, 608 (1990) (quoting United States v. Testan, 424 U.S. 392, 399 (1976)) (internal quotation marks and alterations omitted); see also Charles A. Wright & Arthur R. Miller, 14 Fed. Prac. & Proc. § 3654 (4th ed.) (“[T]he absence of consent by the United States to suit has been treated by courts as a fundamental defect that deprives the district court of subject matter jurisdiction.”). The EPA, an as an agency of the United States, is also entitled to sovereign immunity. Sar ...

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