in what is really an executive branch function.
The requirement in the Committee's Charter that there shall be at least three members representing private industry does appear to provide a clearer standard for review. An agency's "self-imposed constraints [issued in carrying out its statutory mandate] may supply the 'law to apply' under Hecklar v. Chaney." Center for Auto Safety v. Dole, 270 U.S. App. D.C. 73, 846 F.2d 1532, 1534 (D.C. Cir. 1988); see also Robbins v. Reagan, 250 U.S. App. D.C. 375, 780 F.2d 37, 45 (D.C. Cir. 1985). While plaintiff challenges the qualifications of one of the three industry representatives,
the Court is unwilling to substitute its judgment for that of the agency with respect to an appointment that appears to be facially correct.
Although the Court's ruling that this action is nonjusticiable is dispositive of this matter, the Court will briefly address standing as an alternative basis for its decision. Standing requires that plaintiff demonstrate: (1) "an injury in fact" that is "actual or imminent, not "conjectural" or 'hypothetical;'" (2) which is "fairly traceable" to the challenged action; and (3) is "likely" to be redressed in a tangible way by available judicial relief. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992); Humane Soc'y v. Babbitt, 310 U.S. App. D.C. 228, 46 F.3d 93, 96 (D.C. Cir. 1995).
Plaintiff claims that it will be irreparably injured by a committee that is allegedly not "fairly balanced," because more stringent AEGLs will likely result for ammonia and other chemical substances. More stringent AEGLs would then result in additional compliance costs for plaintiff's member-producers.
But plaintiff does not face any imminent threat of injury or irreparable harm. The Committee has made no final decisions on any AEGLs, including ammonia; it has only identified proposed values for several AEGLs, which will be published in the Federal Register for comment by plaintiff and other interested parties. Although EPA does plan to adopt "final AEGLs" to implement risk management programs under its recently enacted Clean Air rulemaking proceeding. 61 Fed. Reg. 31668 (1996). If such rulemaking results in reliance on the AEGLs for ammonia, and plaintiff disagrees with that decision, it can challenge EPA's action at that time.
Plaintiff's claimed injury is not "fairly traceable" to the alleged FACA violation. Necessarily implicit in plaintiff's claim is the suggestion that if there were more industry representatives on the Committee it would likely propose ammonia AEGLs more favorable to plaintiff's economic interest.
But there is no reason to believe that the Committee would do anything differently with one or two more industry representatives serving on it. Indeed, one could just as easily say that if the Committee had more industry scientists familiar with the hazards associated with ammonia, then it might develop more stringent AEGLs. Plaintiff simply cannot establish a causal connection between the Committee's activities from those that would accrue to plaintiff or its member organizations.
For all of the foregoing reasons, this Court shall grant defendant's motion for summary judgment and dismiss this action.
United States District Judge
Having considered plaintiff's motion for preliminary injunction, defendants' motion to dismiss, all opposition thereto, argument by the parties, and for the reasons stated in the foregoing memorandum opinion, it is hereby
ORDERED that plaintiff's motion for preliminary injunction BE DENIED ; and it is further
ORDERED that defendants' motion to dismiss be GRANTED.
United States District Judge