"primary enforcement responsibility for public water systems," 42 U.S.C. § 300g-2(a)(1), and that the Governors' Forum must, therefore, serve an advisory role. As NRDC's counsel conceded at oral argument, states can clearly deviate from the minimums established by EPA.
The workings of the Forum underscore its independent, non-advisory, operational capacity. On June 21, 1992, the Forum will meet to finalize its program. The Forum's program appears to propose the coordination of federal and state efforts in three general areas: 1) methods to increase funding at the state and federal levels for implementation of the drinking water program; 2) ways in which EPA and the states can work together to create the flexibility within the current drinking water program to enable states to retain primacy; and 3) ways in which legislation can ease the burden on the states. Thus, many of the Forum's proposals cannot be implemented through unilateral action on the part of either the EPA or the states. Instead, they may require legislative action on both the state and federal levels.
In addition, the Forum's organization does not resemble an advisory committee. Although Administrator Reilly proposed establishment of the Forum and despite plaintiff's protestations to the contrary, it appears that Governor Castle is responsible for convening meetings, setting the agendas, and drafting proposals. In fact, at the hearing, defendant unequivocally stated that the proposals concerning compliance with the Safe Drinking Water Act were drafted by the Secretary of the Environment in Delaware. Although an EPA official who was present at the initial meeting memorialized the preliminary proposals of the Governors, EPA did not play any role in formulating those plans. In addition, the Forum does not receive federal funds, and the Governors bear their own expenses for Forum-related activities; the membership of the Forum is not fixed, and it is uncertain whether, and in what capacity, the Forum will conduct future proceedings.
Fourth, this is not a situation -- prohibited by FACA -- in which the Governors' Forum is necessarily seeking to influence EPA. As defendant points out, the Governors have no reason to lobby EPA for regulatory relief because they are always free under the Safe Drinking Water Act to allow primacy to revert to EPA. Thus, the Governors appear to be trying to work with EPA toward the common goal of ensuring the safety of the public drinking water supply.
Finally, even at this preliminary stage,
the Court cannot ignore the federalism and separation of powers concerns, which would arise if the Court were to determine that a body of nine Governors organized to address an environmental problem constitutes an advisory committee under FACA. Although counsel for NRDC suggested at the oral hearing that Governors are often subject to FACA-type state legislation, clearly recognizing the problem, she cited no specific examples supporting her claim. In addition, the Court must not overlook the fact that interfering in this meeting could constitute an incursion into the Executive's powers.
On the present record, the Court cannot conclude that it was the intention of the legislature to include the Governors' Forum within the definition of "advisory committee."
The Court also cannot find that no other parties would be harmed if temporary relief were granted or that the public interest favors entry of a temporary restraining order. Closed meetings of the Governors' Forum would foster an environment of cooperation and collegiality among the independent executives. The Governors will be able to engage in a free flow of ideas among each other in an effort to arrive at a solution that may be acceptable to all of the states. By the same token, opening the meetings of the Forum could "have a pronounced and deleterious effect" on the interactive relationship between the Governors and the EPA. See F.C.C. v. ITT World Communications, Inc., 466 U.S. 463, 473 n. 12, 104 S. Ct. 1936, 1942 n. 12, 80 L. Ed. 2d 480 (1984).
Accordingly, for the reasons set forth above, it is hereby
ORDERED that plaintiff's motion for a preliminary injunction is denied; it is
FURTHER ORDERED that future progress of this litigation shall be arranged through the Chambers of Judge Royce C. Lamberth.
For the reasons explained above, there shall be no stay of this Order.
IT IS SO ORDERED.
June 19, 1992.
JOYCE HENS GREEN
United States District Judge