The opinion of the court was delivered by: JOYCE HENS GREEN
On June 12, 1992, plaintiff Natural Resources Defense Council ("NRDC") initiated this action against Environmental Protection Agency ("EPA"), challenging EPA's refusal to open to the public meetings of the Governors' Forum on Environmental Management ("Governors' Forum" or "Forum"). On the same date, plaintiff also filed a motion for a preliminary injunction requesting that the Court prohibit EPA staff from providing any support to the Forum and from obtaining any advice from the Forum unless the Forum opens its meetings.
Plaintiff bases its action on the Federal Advisory Committee Act ("FACA"), 5 U.S.C. App. II § 10(a).
A. Statutory and Regulatory Background
Under the terms of FACA, an "advisory committee" includes "any committee . . . or similar group . . . established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for . . . one or more agencies or officers of the Federal Government." 5 U.S.C. App. II § 3(2). FACA imposes certain procedural and operating requirements on advisory committees. As illustration, FACA requires each advisory committee to file a charter and to keep detailed minutes of its meetings. Id. §§ 9(c), 10(c). In addition, a representative of the federal government, with authority to order adjournment, must attend advisory committee meetings. Id. § 10(e). The public is entitled to advance notice of advisory committee meetings and generally to attend those meetings. Id. § 10(a), (d). Subject to the limitations of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, advisory committee documents must be made available for public inspection. Id. § 10(b).
The regulations promulgated pursuant to FACA provide examples of advisory meetings or groups that are not covered by the Act. Specifically, the regulations exempt "any committee which is established to perform primarily operational as opposed to advisory functions. Operational functions are those specifically provided by law, such as making or implementing Government decisions or policy." 42 C.F.R. § 101-6.1004(g).
2. The Safe Drinking Water Act
In 1974, Congress enacted the Safe Drinking Water Act ("Act"), 42 U.S.C. §§ 300f et seq., to ensure the safety of the public drinking water supply. Under the Act, EPA and the states share responsibility for implementation of the drinking water program. EPA sets national standards for levels of specific contaminants. 42 U.S.C. § 300g-1. The states may then establish their own drinking water programs as long as the state standards are no less stringent than the national standards. The states that enact drinking water programs are authorized to exercise primary enforcement authority ("primacy") under the Act. Id. § 300g-2.
To date, forty-nine states have been authorized primary enforcement responsibility although EPA still retains a role in implementing the Act. For example, EPA monitors state compliance with the Act, id. § 300g-3, and provides technical assistance to the states, id. § 300j-1. The Administrator may also provide financial grants to states with primacy. In those states that have not established their own program, EPA retains authority for implementation of the Act.
In 1986, Congress amended the Act to expand the number of regulated contaminants. EPA expects that by 1995 there will be one hundred eleven regulated contaminants. According to defendant, current state resources for implementation of the Act will be overwhelmed by the expansion of the drinking water problem, states will not be able to increase resources to meet this shortfall, and the states will, therefore, allow primacy to revert to EPA.
On January 8, 1992, William K. Reilly, Administrator of EPA, decided to "personally ask [the] assistance" of various Governors to work with the EPA Administrator "in addressing the problem of state ability to carry out delegated program activities." Plaintiff's Exhibit ("Pl. Exh.") 1 to Plaintiff's Motion for a Preliminary Injunction ("Pl. Motion"). In March, 1992, Administrator Reilly invited a bipartisan group of nine ...