The opinion of the court was delivered by: SPORKIN
This matter is brought by the Fertilizer Institute against the Environmental Protection Agency, et al., for alleged violation of the Federal Advisory Committee Act ("FACA"), 5 U.S.C. App. § 5(b)(2), and the Administrative Procedure Act (the "APA"), 5 U.S.C. §§ 551, et. seq. Before the Court are plaintiff's motions for injunctive and declaratory relief and defendants' motion for summary judgment. The Court heard argument on the motions on September 12, 1996. The Court has considered the motions, all opposition thereto, and the arguments by the parties. Plaintiff's motions for injunctive and declaratory relief will be denied. Defendants' motion to dismiss will be granted.
On October 31, 1995, the EPA announced the establishment of the National Advisory Committee for Acute Exposure Guideline Levels for Hazardous Substances (the "Committee"). 60 Fed. Reg. 55,376 (Oct. 31, 1995). Acute Exposure Guidance Levels ("AEGLs") are exposure guideline levels for airborne concentrations of hazardous substances. AEGLs can be used by federal, state and local agencies and the private sector for emergency planning response and prevention activities related to the accidental release of hazardous substances.
The Committee was established pursuant to § 9(a)(2) of FACA. Its purpose is to develop proposed values for up to 400 AEGLs. The "proposed AEGLs" are then to be published in the Federal Register for public comment. Following the public comment period, the Committee will review all new information and reach consensus on "interim AEGLs" which will be interim values to be reviewed by the National Research Council of the National Academy of Sciences (the "NAS"). See Declaration of Dr. Paul S. Tobin, Designated Federal Officer for the Committee/AEGLs ("Tobin Decl."), P 2-3, 14-15. The "final AEGLs" will then be published under the auspices of the NAS. 60 Fed. Reg. at 55377.
FACA generally requires regulated committees to file a charter, id. § 9(c), to provide advance notice of their meetings and open them to the public, id., § 10(a), and to make publicly available their minutes, records and reports, id. § 10(b). The statute also requires the membership of FACA committees "to be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee." Id., § 5(b)(2), (c).
EPA issued the charter for the Committee (the "Charter") pursuant to FACA § 9(c). The Charter identifies various groups and organizations to be represented on the Committee, including "at least three members representing private industry." Charter P 4. Nineteen individuals were appointed to the Committee on June 10, 1996, and the Committee met for the first time on June 19-21, 1996. After the second meeting on August 5-7, 1996, two members dropped out. EPA appointed four new members to the Committee on September 6, 1996.
Plaintiff argues that the composition of the Committee violates the "fair balance" requirement of FACA with respect to industry representation, in that: (1) fewer than three members of the Committee represent private industry; (2) even if the Committee did meet the membership requirement of three members from private industry, the current number and composition does not constitute a "fair balance" on the Committee; and (3) no representative of the ammonia industry is a member of the Committee. Plaintiff also argues that the current composition of the Committee fails to comply with the Charter, in violation of FACA § 5(b)(2).
The government advances four arguments in support of its motion to dismiss: (1) plaintiff lacks standing to challenge the Committee's "fair balance" because it has not suffered any injury; (2) plaintiff's claims are nonjusticiable because of the lack of a judicially manageable standard of review of the "fair balance" requirement; (3) plaintiff cannot state a claim for relief under the Committee's Charter; and (4) plaintiff is not entitled to preliminary injunction relief.
Although the FACA "fair balance" requirement has been addressed by this circuit on several occasions, the cases establish no clear precedent.
After applying the facts of this matter to the requirements of FACA and the APA, the Court finds that the issue of "fair balance" with respect to the Committee's composition is nonjusticiable. As an alternate basis for its decision, the Court also finds that plaintiff lacks standing to pursue its claim, missing both an imminent threat of injury or irreparable harm and an injury that is fairly traceable to the alleged FACA violation.
Since FACA contains no provision for judicial review, the availability of such review must derive from the APA. See Mulqueeny v. National Comm'n on the Observance of Women's Year, 549 F.2d 1115, 1120 & n.15; Microbiological Criteria, 886 F.2d at 419, 426, 432. The APA bars judicial review of agency action when the action is "committed to agency discretion by law." 5 U.S.C. § 701. Under Heckler v. Chaney, 470 U.S. 821, 84 L. Ed. 2d 714, 105 S. Ct. 1649 (1985), agency action is committed to agency discretion by law when Congress has provided no "meaningful standard against which to judge the agency's exercise of discretion." Id. at 830. That is, judicial review is not available under the APA if a statute is "drawn in such broad terms that in a given case there is no law to apply." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971) (quoting S.Rep. No. 752, 79th Cong., 1st Sess. 26 (1945)).
It appears to be an open question in this circuit whether FACA's "fairly balanced" provision is justiciable.
On the basis of the ...