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NATURAL RESOURCES DEFENSE COUNCIL v. HERRINGTON

June 11, 1986

NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiff,
v.
JOHN S. HERRINGTON, et al., Defendants



The opinion of the court was delivered by: PENFIELD

 Plaintiff Natural Resources Defense Council, Inc. ("NRDC"), a non-profit environmental protection organization, invoked the Federal Advisory Committee Act ("FACA" or "Act"), 5 U.S.C. App. I §§ 1-15, to gain admission to all collective activities of six scientist-executives convened last month by the Secretary of Energy to study the safety of a government-owned nuclear reactor currently in operation in the state of Washington. Denied access by the defendants, the Secretary and the Department of Energy ("DOE" or "Department"), NRDC now sues to enjoin those activities altogether until its representatives are allowed to attend, and defendants comply with certain other requirements of the Act as well. *fn1"

 The case is presently before the Court on plaintiff's motion for a preliminary injunction and defendants' cross-motion for summary judgment. The material facts appear of record and are not in dispute. For the reasons hereinafter set forth, the Court will deny plaintiff's application for a preliminary injunction, grant defendants' motion for summary judgment, and dismiss the complaint with prejudice.

 I.

 The litigation was provoked by a DOE initiative in response to the Soviet nuclear disaster at the Chernobyl power station near Kiev in the Ukraine in April, 1986. Before the Chernobyl reactor fire had been extinguished, Secretary Herrington invited six private U.S. citizens, each expert in certain aspects of nuclear physics, engineering, and systems management, to assist DOE in an expedited examination of the safety of its own plutonium production reactor, the N-Reactor, at the Hanford Reservation near Richland, Washington. *fn2" Like the one at Chernobyl, and apparently unlike any other in the United States, the N-Reactor, built in 1963, moderates the fission reaction of its fuel elements with graphite and cools the reactor core with water.

 In a May 5th press release DOE announced that it had "established a special safety review panel" of experts to study the N-Reactor; two days later a DOE Assistant Secretary testified before a Congressional committee that Secretary Herrington had formed an "external panel of independent experts . . . to conduct an analysis and review of the issues raised by the Soviet incident . . . ." DOE then scheduled what it termed "joint briefings" for the experts in Washington, D.C., for May 22nd and 23rd on, principally, general aspects of the Chernobyl incident. Further "joint briefings" are to be given on June 12-13 on the N-Reactor specifically, and a tour of the N-Reactor during shut-down will be conducted on July 1-2. A final "joint briefing," if necessary, will take place in mid-July.

 On May 16th NRDC learned of the first "joint briefing" session to occur the following week and, insisting that the "N-Reactor panel" was covered by FACA, asked to be allowed to send observers. On May 19th DOE refused, prompting the filing of this action on May 20, 1986. *fn3"

 II.

 The sole issue raised by defendants' motion for summary judgment is whether or not its ensemble of experts constitutes an "advisory committee" within the meaning of FACA. *fn4" Section 3 of the Act provides,

 
the term "advisory committee" means any committee, board, commission, council, conference, panel, task force, or other similar group . . . which is . . . established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government . . . .

 5 U.S.C. App. I § 3(2)(C).

 
The intention is to interpret the words "established" and "organized" in their most liberal sense, so that when an officer brings together a group by formal or informal means, by contract or other arrangement, and whether or not Federal money is expended, to obtain advice ...

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