The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
The Department of Energy ("DOE") is currently overseeing the construction of a multi-billion dollar facility in Livermore, California named the National Ignition Facility ("NIF"). The NIF, as designed, would be used to initiate and sustain the nuclear fusion process in laboratory conditions. In theory, a fusion reaction would be produced by converging 192 lasers on a tiny fuel pellet, crushing and heating the pellet until its atoms emit nuclear energy, a process called "ignition." See Pl. Ex. 1, at 7 (GAO Report).
The Federal Advisory Committee Act ("FACA"), 5 U.S.C. App. 2, imposes certain requirements on advisory committees established by the federal government that include members who are not "full-time officers or employees of the Federal Government." 5 U.S.C. App. 2 § 3(2); see Food Chem. News v. Young, 900 F.2d 328, 332 (D.C. Cir. 1990). Plaintiffs, National Resources Defense Council ("NRDC") and TriValley CARE, filed this lawsuit against DOE and the Secretary of DOE on October 11, 2000. Plaintiffs' claims arise under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. They claim that DOE has violated FACA through its formation and use of committees to advise it on the ongoing construction of the NIF. In addition, they aver that DOE has a policy of convening advisory committees in violation of FACA.
Defendants contend that plaintiffs do not have standing to seek the requested relief. Furthermore, they claim that none of the challenged committees is subject to FACA for two primary reasons. First, they maintain that the committees are primarily "operational" and not advisory and, second, that FACA does not apply to committees that are composed solely of federal employees and employees of federal contractors. With respect to the High Energy Density Physics Study Panel ("HEDP Panel"), defendants further argue that it did not function as a group. Finally, defendants aver that plaintiffs' "pattern and practice" claim is not legally cognizable.
The Court finds that plaintiffs have demonstrated that they have standing to bring their claims under FACA and the APA. Plaintiffs' procedural injuries will be sufficiently redressed by the declaratory and injunctive relief they seek. See Cummock v. Gore, 180 F.3d 282 (D.C. Cir. 1999); Byrd v. Env'tl Protection Agency, 174 F.3d 239 (D.C. Cir. 1999).
The Court finds that DOE's establishment and use of three of the four challenged committees contravenes FACA. The record before the Court indicates that the committees are advisory in nature, and not purely "operational," as argued by defendants. The committees did not have the capability of acting on their own and, rather, provided advice to the Department. With respect to defendants' argument that FACA does not apply to committees comprised of federal contractors and federal employees, defendants have relied solely on case law and legislative history that supports a conclusion that federal contractors who themselves convene committees are not subject to the strictures of FACA. The only applicable statutory exemption from FACA's coverage is for committees composed wholly of federal employees and officers. See 5 U.S.C. App. 2 § 3(2). The Court finds no basis for creating a new exception to FACA for committees established by federal agencies that include individuals who are not employees of federal contractors. Accordingly, the Court holds that FACA applies to committees established by DOE that include members who are not federal employees or officers, and are employed by federal contractors.
However, with respect to the HEDP Panel, plaintiffs have failed to present any evidence that would rebut defendants' claim that the panel did not function on a group. Consequently, the Court finds that FACA does not apply to DOE's establishment and use of the HEDP Panel.
Plaintiffs have established that DOE has a policy of convening committees without complying with FACA. Indeed, DOE avers that it has a written policy stating that status review committees are to be convened without conforming to FACA's requirements. Plaintiffs' claim is actionable pursuant to the APA, 5 U.S.C §§ 702, 704, and plaintiffs are entitled to a declaratory judgment on this claim. However, plaintiffs have failed to demonstrate that they are entitled to a court order that DOE give plaintiffs 60 days notice of its intent to convene a committee. Plaintiffs have failed to demonstrate that this requested relief is necessary or would be effective in remedying their asserted injuries.
The Court has carefully considered the parties' cross motions for summary judgment, the responses and replies thereto, the oral argument of counsel, the entire record herein, and the applicable statutory and case law. For the following reasons, the Court enters summary judgment for defendants, and against plaintiffs, on plaintiffs' claim that DOE's establishment and use of the HEDP Panel violated FACA. However, the Court enters summary judgment for plaintiffs, and against defendants, on plaintiffs' claims with respect to the Rebaseline Validation Review of the NIF ("Rebaseline Committee"), the two technical status review committees convened by DOE, and plaintiffs' claim that DOE has a policy of convening committees in violation of FACA. With the exception of plaintiffs' request that DOE be required to notify plaintiffs in advance of convening committees to advise it on the NIF, and whenever the use injunction is implicated, plaintiffs are entitled to their requested relief on these claims. The Court denies plaintiffs' request for an order requiring DOE to give plaintiffs notice of its intent to convene a committee, and denies without prejudice plaintiffs' request for notification of invocation of the use injunction.
This case initially concerned DOE's establishment and use of only one committee. Plaintiffs filed this lawsuit on October 11, 2000, contending that the Rebaseline Committee was subject to FACA. After plaintiffs requested a preliminary injunction, DOE reconvened many of the Rebaseline Committee members into a new committee, the Technical Status Review Committee (February 2001 Status Review Committee). Also in February 2001, DOE convened the HEDP Panel.
On March 28, 2001, this Court issued a preliminary injunction barring defendants from using the recommendations of either the Rebaseline Committee or the Status Review Committee outside of the Executive Branch and federal contractors, except in response to questions from Congress or the GAO, and then, only with a disclaimer. *fn1 See Civ. Action. No 00-2431, Order of March 28, 2001, modified by Order of April 3, 2001.
On November 10, 2001, when DOE informed plaintiffs that it intended to convene another Technical Status Review Committee, the parties entered into a stipulation that the documents from the Technical Status Review Committee would be preserved pending the court's determination of whether the committee is subject to FACA.
In November 2001, and again in May 2002, DOE formed Technical Status Review Committees ("November 2001 Status Review Committee" and "May 2002 Status Review Committee"). Thus, subsequent to the filing of this lawsuit, DOE convened a total of four additional committees to advise it on the status of the NIF. On May 16, 2002, the parties filed a stipulation, in which they agree that, if the Court "rules that the November 2001 Technical Status Review Committee is covered by FACA, DOE will provide to plaintiffs" documents regarding the May 2002 committee.
Plaintiffs filed a supplemental complaint on June 4, 2002, in which they contend that DOE convened and used these additional four committees in violation of FACA. Plaintiffs, in their initial complaint and in their supplemental complaint, allege that each of the five committees was convened in violation of FACA and that DOE has a pattern and policy of utilizing committees in violation of FACA.
Plaintiffs seek five specific forms of relief. With respect to their claims that the five committees - the Rebaseline Committee, the HEDP Panel and three Status Review Committees - were subject to FACA and that DOE failed to convene the committees in accordance with FACA, plaintiffs seek declaratory relief, an injunction on use of the committee reports without an appropriate disclaimer that the committees operated in violation of FACA, and disclosure of committee materials subject to public review pursuant to FACA. In addition, plaintiffs' supplemental complaint seeks an order requiring defendants to notify plaintiffs whenever the disclaimer is "invoked." With respect to their claim that DOE has a policy of establishing committees to advise it on the NIF in violation of FACA, plaintiffs seek declaratory relief and an injunction that would require DOE to inform plaintiffs of their intention to establish a committee 60 days before such a committee was created.
The NIF, if completed, will be a unique 192-beam laser capable of compressing and heating a small capsule to conditions at which thermonuclear fusion and ignition occur. According to the government, the NIF is a key component of DOE's Stockpile Stewardship Program, the goal of which is to maintain the United States' nuclear arsenal without underground nuclear testing.
NIF was first proposed in 1990, and construction was commenced in May, 1997. Since the inception of the NIF project, scientists and organizations have raised significant concerns about the safety and feasibility of the NIF. See Pl. Ex. 3 ¶¶ 2, 21-23 (Payne decl.); Pl. Ex. 4 ¶¶ 3-10 (Kelley decl.); Pl. Ex. 5 ¶¶ 4-10 (Turner decl.); Pl. Ex. 6 ¶¶ 7-12 (Fulk Decl.). In 1997, NRDC sued DOE alleging that the construction of NIF was in violation of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4332 et seq. In NRDC v. Pena, 972 F. Supp. 9, 11-13 (D.D.C. 1997), this Court held that DOE's construction of NIF was in accordance with NEPA.
DOE's use of advisory committees in evaluating the NIF project has a long and complicated history, one that is tied to the development of the project and Congress' sustained reluctance to fund the facility without the assurances of certain quality and cost controls. When DOE first announced its decision to begin constructing the NIF in early 1997, DOE estimated that the facility would cost $1.2 billion, and would be completed by 2003. See Pl. Ex. 1, at 10 (GAO Report). Two years later, in a June 1999 speech, then Secretary of Energy Bill Richardson announced that the NIF was "on time and within its budget." See Pl. Ex. 2, at 3. However, soon after this speech, DOE admitted that the NIF would cost an additional billion dollars to build, and would not be completed until at least 2008. See Pl. Ex. 1, at 7. Indeed, given these delays and the increase in predicted cost, a FACA- chartered committee considering the progress of the NIF recommended that construction of the facility not be initiated. GAO Report at 5. Yet, according to Secretary Richardson, "independent reviews" of the NIF performed after the FACA- chartered committee was disbanded had not identified existing technical problems. See Pl. Ex. 8 (DOE Press Release, 9/3/99).
In the fall of 1999, members of Congress were considering whether to terminate all funding for the NIF. Ranking chairs of the House of Representatives' committee overseeing the NIF explained that revelations regarding the NIF might "herald the demise of yet another large DOE construction project" because DOE had "obscure[d] key problems from Congress." Pl. Ex. 9, at 2 (Letter from Congressman F. James Sensenbrenner, Jr. and Congressman Ralph M. Hall to Comptroller General David M. Walker, 9/13/99).
To address concerns about possible technical problems with the NIF, Congress asked the General Accounting Office ("GAO") to prepare its own evaluation of the ongoing problems related to the NIF. Id. In addition, the 1999 Conference Report on continued appropriations for the NIF explained that Congress was "very disappointed" with DOE's handling of the project, and instructed that "[a]additional reviews [of the NIF] be performed in the coming months to establish the appropriate future actions for proceeding with this project." H.R. Conf. Rep. No. 336, 106th Cong., 1st Sess. at 96-7 (Sept. 27, 1999). The Conference Report further instructed that, unless DOE completed a new cost and schedule baseline by June 1, 2000, the Department must "prepare an estimate of the costs necessary to terminate the project." Id. at 97.
During the fall 2000 appropriation process, Congress again considered whether to continue to fund the NIF's construction. In a floor statement on September 7, 2000, Senator Tom Harkin opined that the NIF was a "massive public boondoggle," with "cost overruns, slipping schedules, and unsolved technical problems." 146 Cong. Rec. 8164-65 (daily ed., Sept. 7, 2000).
To respond to these concerns, DOE made a written presentation to Congress on September 14, 2000. See Pl. Ex. 21. In that presentation, DOE explained that it had conducted the "Rebaseline Validation Review," which concluded that "the rebaseline was credible [and] there is high confidence that the project can be successfully completed within the proposed cost and schedule...." Id., Attach. 1. DOE also submitted the Rebaseline Committee's report to Congress. Id. Furthermore, although the work of the NIF Task Force was not yet complete, the Chairman of the Task Force submitted a letter in which he stated that, in "view of the members" of the Task Force, the plans for completion of the NIF were "thorough and credible." Id., Attach. 4.
Congress appropriated an additional $130 million for the NIF's construction in Fiscal Year 2001. However, Congress withheld $69 million of those funds until such time as DOE submitted a "certification" recommending "an appropriate path forward for the project" and assuring that "all established project and scientific milestones have been met on schedule and on cost." See Dep't of Vet. Affairs & Housing & Urban Dev't Approp. Act, Pub. Law 106-377, 114 Stat. 1441 (Oct. 27, 2000). Congress mandated that this certification be made at some point after March 1, 2001.
In August 2000, GAO issued its findings on the progress of the NIF project. One of the principal conclusions of GAO's report was that no effective independent review of the NIF had been performed. Pl. Ex. 1, at 5, 13. The report noted that, while the NIF had "been frequently reviewed," the inadequacy of those reviews "bring[s] into question their comprehensiveness and independence." Id. at 33. Thus, the GAO report recommended that DOE "arrange for an outside scientific and technical review of the technical challenges remaining for NIF that could affect the project's cost and schedule risks." Id. at 6, 32.
In February 2001, as part of the effort to prepare recommendations in response to Congress' certification directive, DOE convened a Status Review Committee. The Status Review Committee included many of the members from the Rebaseline Committee. The February 2001 Status Review Committee authored recommendations that would permit DOE to obtain the Congressional certification necessary to receive the $69 million budgeted for fiscal year 2001.
On April 6, 2001, DOE submitted the certification to Congress. *fn2 See Pl. Ex. 27. In its certification, DOE relied upon the recommendations of the February 2001 Status Review Committee, as well as the High Energy Density Physics Study Panel ("HEDP" Panel), which was also convened in February 2001. See id.
Subsequent to DOE's certification to Congress, GAO issued a follow-up report on the NIF that found that "[p]ersistent DOE oversight problems continue to place the NIF project at risk." Pl. Ex. 28, 4 (GAO letter to Senator John W. Warner, 6/1/2002).
GAO reiterated its concern that the "NIF still lacks an independent external review process." Id. DOE again convened technical status review committees in November 2001 and May 2001.
C. DOE's Use of Committees in the NIF Planning and Construction Process
From 1992 to 1995, DOE sought advice and recommendations concerning the NIF from the DOE Inertial Confinement Fusion Advisory Committee ("DOE-ICFAC"), an advisory committee chartered and operated under FACA. The DOE-ICFAC recommended moving to the next step in the NIF project, which was to commence the "final design phase in FY 1997."
In 1995, DOE sought advice from a committee of the National Academy of Sciences' National Research Council called the Committee for the Review of the Inertial Confinement Fusion Program at the Department of Energy ("NAS-ICF Committee"). This committee did not comply with FACA's requirements. However, as defendants note, at the time that the NAS-ICF Committee was established, two rulings from this Court had held that National Academy of Sciences committees were not "advisory committees" within the meaning of FACA. See Animal Legal Defense Fund v. Shalala, 104 F.3d 424 (D.C. Cir. 1997) (reversing 1995 district court ruling); Lombardo v. Handler, 397 F. Supp. 792 (D.D.C. 1975). In January 1997, the D.C. Circuit, in Animal Legal Defense Fund, held that a National Academy of Sciences committee, which was utilized by the Department of Health and Human Services, was subject to FACA. 104 F.3d 424.
In February 1997, plaintiffs in this case brought a lawsuit against DOE challenging the failure of the NAS-ICF Committee to comply with FACA. Judge Friedman declared that DOE had violated FACA and prohibited DOE from further supporting the work of the challenged committee. NRDC v. Pena, Civ. Action No. 97-0308 (D.D.C. Aug. 6, 1997).
The D.C. Circuit upheld the district court's holding that the NAS-ICF Committee was subject to FACA, but remanded the case for discovery on the issue of whether the organizations had standing to seek an injunction, which would wholly prevent DOE from using the committee's report. NRDC v. Pena, 147 F.3d 1012, 1017 (D.C. Cir. 1998). The parties settled the case prior to a decision on remand.
1. NIF Laser System Task Force, October 1999 *fn3
In 1999, the Secretary of the Department of Energy requested that the Secretary of Energy Advisory Board ("SEAB"), a FACA- chartered committee, form a subcommittee to conduct an engineering and management review of the NIF laser system and recommend the best technical course of action. In October 1999, the NIF Laser System Task Force ("Task Force") was convened.
This subcommittee was charged with reviewing the engineering and management aspects of the assembly and installation of the NIF laser system.
On November 12, 1999, DOE published a Federal Register notice acknowledging that the Task Force was subject to FACA. 64 Fed. Reg. 61625 (1999) (Pl. Ex. 14) (announcing meeting on Nov. 15-16, 1999). DOE contends that the Federal Register notice was erroneous and should be given no legal weight. While claiming that the Task Force was not subject to FACA, defendants nevertheless note that all Task Force meetings were open, noticed in the Federal Register, and included public comment opportunity. Plaintiffs maintain that the meetings were held within a few days of public notice of the meetings and, in one instance, before notice was given.
The Task Force Chairman communicated his views regarding the state of the NIF project directly to the Secretary of Energy. Defendants characterize the chairman's letter as a communication from the chairman only, and not a communication from the Task Force. See Def. Ex. 16 ("I am writing to give my personal impression of the present state of the [NIF] Project as well as my understanding of the views of the members of the [NIF Laser System Task Force] as they draft their final report."). While not a communication on behalf of the Task Force, the chairman's letter arguably conveys the advice of the Task Force members to the Secretary. The Task Force prepared an Interim and a Final Report that were submitted to DOE. Defendants maintain that the reports were first presented to, considered by and approved by the SEAB, and only then submitted by SEAB to DOE. The SEAB report and the Task Force report were submitted to Congress.
2. Rebaseline Validation Review of the NIF, June 2000
In June 2000, DOE established the Rebaseline Committee. The purpose of the review was to "validate the revised project baseline" and to "identify any issues that must be addressed so that the Department can have a high level of confidence that the project will be successfully executed according to the Baseline." See Rebaseline Report.
The Rebaseline Committee did not file a charter as required by FACA and failed to make the required determinations that the committee was necessary. While plaintiffs maintain that the committee met entirely in secret, defendants note that the formation of the Rebaseline Committee was announced in a letter to Congress.
The Rebaseline Committee included DOE employees, employees of DOE contractors and other non-federal employee members. Id. at App. B. Plaintiffs contend that the committee was not balanced in terms of points of view and that members of the committee had conflicts of interest.
The Rebaseline Committee met in August 2000 without any public participation or notice, and issued its report the same month. Some documents relating to the Rebaseline Committee are available to the public in the Public Reading Room at DOE's Oakland Operations Office. See Anderson Decl. ¶ 12 (stating that briefing materials for the Rebaseline Committee, with business proprietary and personnel information removed, are available in reading room).
Plaintiffs filed this lawsuit on October 11, 2001 seeking to enjoin DOE from relying on the Rebaseline Review. The reports of the Task Force and the Rebaseline Committee were submitted as part of DOE's certification of the revised NIF baseline that was mandated by Congress. Pursuant to this Court's preliminary injunction, the Rebaseline Review, as well as the report of the February 2001 Status Review Committee, was accompanied by a disclaimer. The injunction restricted the defendants to sharing the reports within the executive branch and, only upon request, with Congress.
3. Status Review Committee, February 2001
In February 2001, DOE reconvened many of the members of the Rebaseline Committee in a Status Review Committee. This committee was charged with determining how the NIF project was progressing in terms of the approved schedule and costs.
The Status Review Committee included DOE employees, employees of DOE contractors and five individuals, who were not federal contractors or employees and served as technical advisors to some of the subcommittees. Only one of these technical advisors participated in a committee meeting. Defendants contend that the participation in this single meeting was inadvertent.
DOE did not file a charter for the Status Review Committee, and did not make a determination that the committee was necessary or ensure that its membership was balanced and free of conflicts of interest. Some briefing materials relating to the February 2001 Status Review are available in the Public Reading Room at DOE's Oakland Operations Office.
4. High Energy Density Physics Study Panel, February 2001
In February 2001, DOE convened the HEDP Panel to prepare further recommendations on policies to the NIF. DOE organized a High-Energy-Density Physics Workshop at Sandia/California on January 30 - February 2, 2001. According to defendants, the workshop was one source of information included in the HEDP Panel that DOE had undertaken in response to a Congressional mandate that DOE study alternatives to the NIF's 192-beam facility.
HEDP panel members listened to presentations and asked questions of the presenters. The panel members then provided opinions to DOE by answering written questionnaires. Defendants contend that the panel members provided individual opinions to DOE, with DOE independently drafting the HEDP Study Report.
DOE did not file a charter for the HEDP Panel and made no findings that the entity was necessary. Furthermore, plaintiffs contend that DOE did not ensure that the committee membership was balanced or free from conflicts of interest. The members of the panel included federal employees and employees of DOE laboratories. Defendants assert that the laboratory employees provided advice on matters within the scope of their contracts.
In April 2001, the National Nuclear Security Administration ("NSAA") Administrator certified to Congress that NIF was on schedule and within its budget. In making this certification, the Administrator attached a copy of DOE's HEDP Study Report and relied upon, but did not attach, the February 2001 Status Review Report. However, DOE did not submit the recommendation of the individual study panel members to Congress.
5. Technical Status Review Committees, November 2001 and May 2002
In November 2001, NNSA convened a limited Technical Status Review Committee to prepare further recommendations on policies related to NIF. Specifically, the review was to determine if the construction project was still on schedule and within budget.
DOE did not file a charter for this committee, nor did it make a finding that the committee was necessary. The members of the committee included federal employees and employees of DOE laboratories. Unlike the earlier status review committee, this committee did not include private consultants. Plaintiffs contend that the membership of the committee ...