Pacific Legal Foundation v. Council on Environmental Quality

No. 79-116 (D.D.C. June 19, 1979)

Granting defendants' motion for summary judgment, the court rejects plaintiff's challenges to the legality of the procedures used by the Council on Environmental Quality in carrying out its functions. The Council is not subject to the common-law quorum rule because the agency's statutory purposes and mission supersede general common law principles, and the Council's mode of operation does not contravene the statute creating it. The court also rules that even though the Council has published Government in the Sunshine Act regulations, it is not an agency within the meaning of the Sunshine Act and is exempt from the statutes when acting in its capacity as advisor to the President.

Counsel for Plaintiff
Ronald A. Zumbrun
Pacific Legal Foundation
455 Capitol Mall, Suite 465, Sacramento CA 95814
(916) 444-0154

Raymond M. Momboisse, Sam Kazman
Pacific Legal Foundation
1990 M St. NW, Suite 550, Washington DC 20036
(202) 466-2686

Counsel for Defendants
Vincent M. Garvey; Barbara A. Babcock, Ass't Attorney General; Lawrence R. Liebesman, Mark C. Rutzick
Civil Division
Department of Justice, Washington DC 20530
(202) 633-3442

Foster Knight
Council on Environmental Quality
722 Jackson Place NW, Washington DC 20006
(202) 395-4616

[9 ELR 20610]

Flannery, J.:

Memorandum Opinion

This matter comes before the court on the defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The plaintiff Pacific Legal Foundation (PLF), which describes itself as a nonprofit, tax-exempt public interest organization, asks the court to declare that the defendant Council on Environmental Quality (CEQ or Council) violated the common-law quorum rule and the Government in the Sunshine Act (Sunshine Act or Act), 5 U.S.C. § 552b (1976), during the period from June 8, 1977 through January 10, 1979, the date this suit was filed. The PLF alleges that, during those 19 months, the CEQ conducted no open meetings, took no recorded votes on closing its meetings to the public, issued no public announcements regarding its meetings, and failed to maintain for public access any transcripts, recordings, or minutes of its closed meetings, and that the CEQ's General Counsel failed to issue public certifications of closed meetings. The PLF also seeks an injunction prohibiting the CEQ from all future violations of the Act, its regulations, and its "statutory collegial status," and a declaratory judgment declaring as void and invalid all actions by the CEQ that the PLF contends should have been taken pursuant to a formal collegial determination according to the common-law quorum rule, and were not.

There are no disputed issues as to any material fact in this action and the court properly may decide this controversy under Rule 56.¹ For the reasons set forth below, the court concludes that the defendants are entitled to judgment as a matter of law.

I. Background

CEQ was created as a unit within the Executive Office of the President (EOP) by Title II of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq. (1976), to assist the President in the formulation of environmental policy.² It was modeled after the Council of Economic Advisors (CEA), which has functioned within the EOP since 1946 and advises the President on economic matters. Section 204 of NEPA, id. § 4344, and executive Orders issued pursuant thereto³ define the CEQ's advisory and other responsibilities.⁴ The Council is composed of three members, a chairman and two colleagues, who are appointed by the President "to serve at his pleasure," Id. § 4242, and are confirmed by the Senate.

According to the affidavit of the current chairman of the CEQ, which the defendants have submitted in support of their [9 ELR 20611] motion for summary judgment,⁵ the Council's many functions may be viewed as falling into three general categories. First, in its regulatory role, the CEQ prepares and adopts regulations, which are binding on federal agencies, implementing the procedural provisions of § 102(2) of NEPA, id. § 4332, and publishes and revises periodically the National Oil and Hazardous Substances Pollution Contingency Plan regulations.⁶ Second, in rendering assistance and advice to the President, the CEQ counsels the President on the conditions and quality of the environment, contributes to the development of the Administration's environmental legislative program and to Executive Orders involving environmental quality, and makes policy recommendations on existing and proposed federal agency environmental programs.⁷ Third, the chairman of the CEQ functions as the Director of the Office of Environmental Quality, which operates within the EOP. In his capacity as Director, the chairman works on various administrative, fiscal, and personnel matters, and contracts with outside consultants to prepare studies and analyses of environmental quality issues and to obtain environmental quality data.⁸

In discharging its numerous responsibilities, the CEQ has adopted two methods of doing business. When it amends or issues regulations, the Council acts collegially, with an affirmative vote of at least two members being required in order for the action to be taken on behalf of the Council. CEQ decision making on issues encompassed within the last two areas of Council responsibility, however, is "non-collegial" and "informal." In these areas, explains the CEQ:

the Council functions much like an executive federal department with the chairman as agency head and the two other members functioning at the Assistant Secretary level . . . . In carrying out activities in assigned areas of leadership responsibility, Council Members do not formally meet to deliberate an agenda and vote on each item of Council business before carrying it out. Instead, the responsible Council Member, working with the appropriate Council staff unit, takes the action on the Council's behalf.⁹

Although the CEQ performs most of its functions on a non-collegial basis, members of the Council keep abreast of each other's actions by reviewing copies of all correspondence passing through the office and through weekly or biweekly conferences and staff briefings.

II. Common-Law Quorum Rule

the PLF bases its first challenges to actions taken by the CEQ on the common-law quorum rule. It alleges that "CEQ's operation as a single-headed agency is in violation of the common-law rule that, absent a statutory provision to the contrary, a collective body can only act pursuant to a decision by a majority of the quorum of that body."¹⁰ The plaintiff argues that the Council must act collegially because the CEQ's organic statute purportedly requires that CEQ action be collegial and because no statutory provision allows the CEQ to operate non-collegially. The court finds these arguments unpersuasive and is unable to conclude that the CEQ is required by statute or common law to fulfill all of its responsibilities through the formal collegial vote of a quorum of its members.

The statute creating the CEQ provides that "The Council shall be composed of three members . . . ." Id. § 4242. Moreover, the provisions describing the duties of the CEQ state that the "Council," rather than Council members, shall perform the enumerated functions. Id. § 4244. Although none of the provisions speaks of quorum requirements or requirements of collegial action, the PLF argues that the decision by the court of appeals for this circuit in Public Service Commission v. FPC, 177 U.S. App. D.C. 272, 543 F.2d 757 (1974), compels the conclusion that the CEQ's organic statute imposes a requirement of collegial action upon the Council. In that case, the court of appeals held:

[The National Gas Act] provides, "the Commission shall have power to grant or deny rehearing . . . ." This grant, in terms, runs to the Commission as a governmental body. The Commission is an entity apart from its members, and it is its institutional decisions — none other — that bear legal significance. Only as an entity can the Commission formulate valid original decisions.

Id. at 291, 543 F.2d at 776. According to the plaintiff, with respect to the issue of collegiality, the congressional grant of power to the CEQ is no different from the grant to the FPC construed by our court of appeals.

The plaintiff's reliance upon the similarity of language in the organic statutes of the FPC and the Council ignores important differences in the structure and mission of the two agencies. Unlike the FPC, the CEQ is not an independent regulatory agency and does not exercise quasi-judicial functions. In those infrequent instances in which the CEQ issues or amends regulations it, like the FPC, acts on a collegial basis. Yet, as described above, the CEQ also performs a wide range of other functions in its capacity as the President's advisor on environmental policy.The Council has determined that such operations as providing environmental information, reviewing and appraising federal programs, developing national environmental programs, and furnishing studies and reports do not fit within the formal collegial decision-making process. The court agrees with the defendants that, in determining whether an agency's mode of operation contravenes the statute creating it, a court must look to the purposes and mission of the agency rather than apply uncritically general common-law principles. The Court of Appeals for the Tenth Circuit followed such an approach in Earnest v. Moseley, 426 F.2d 466 (10th Cir. 1970). In Earnest, the Tenth Circuit held that decisions of the eight-member United States Board of Parole could be made on its behalf by two of its members, even in the face of a statute authorizing "the Board" to revoke and terminate an order of parole or to modify the terms of an order. The court of appeals declared:

We see nothing in this language which would compel the conclusion that the entire Board must decide on every parole revocation. The creation of the Board and Congress' vesting in it a very broad discretion carries with it an inherent authority to establish such procedures as will best effectuate Congress' purpose in establishing the Board and the parole system . . . . To too narrowly circumscribe the authority of the Board to establish its own internal procedures and effectively distribute its work load would impose an undue burden on the Board and, indeed, the entire parole system.

Id. at 469. Accord, Van Blaricom v. Forscht, 511 F.2d 615, 617 (5th Cir.) (en banc), cert. denied, 423 U.S. 915 (1975). In the present case, the court sees no reason to disturb the CEQ's determination that the adoption of collegial decision making in all of its operations would affect adversely its ability to provide impartial and objective expert advice to the President on matters of economic policy. See Udall v. Tallman, 380 U.S. 1, 16 (1965).¹¹

III. Sunshine Act

The CEQ is not on the list of agencies identified as being covered by the Sunshine Act in the Senate and House committee reports on the Act; nevertheless the Council has promulgated regulations pursuant to 5 U.S.C. § 552b. See 40 C.F.R. part 1517. At the time the PLF filed this action, the CEQ had instituted rule-making [9 ELR 20612] proceedings to amend its regulations for the purpose of clarifying the application of the Act to the Council's operations.According to the defendants:

As proposed, the amendments clarify that the Sunshine Act applies to the Council's collegial actions (i.e., those requiring an affirmative vote of at least two Council members) including the adoption of regulations and further specify that neither actions taken solely by the Chairman of the Council in his capacity as Director of the Office of Environmental Quality nor action taken by the Council either singly or collegially to provide advice or assistance to the President are within the scope of the Sunshine Act.¹²

The proposed amendments thus would conform the regulations to Council practice under the Act.

The PLF maintains that, because the CEQ is an "agency" within the meaning of the Sunshine Act, all of its activities, regardless of subject matter, fall under the Act. Both the language of the Act and its legislative history, argues the plaintiff, clearly refute the Council's position that it is exempt from the requirements of the Act when it acts in an advisory capacity. Section 552b(a)(2) states that the Act reaches the "joint conduct or disposition of official agency business." The PLF contends that the only distinctions the Act makes on the basis of the subject matter of agency business are contained in its exceptions to the presumtion of openness enumerated in subsection 552(b) — exceptions the CEQ never has invoked.

The court is not persuaded that the formulation and presentation of advice to the President on environmental matters, which is the CEQ's primary responsibility, is "official agency business" subject to the requirements of the Act. Although the plaintiff argues that Congress clearly intended for the Act to cover meetings in which Council members decide on advice to the President, the court reaches a different conclusion from the sparse legislative history relevant to this issue. In his remarks on Senate bill S. 5, Senator Javits expressed the view that the Council of Economic Advisors, the CEQ's sister collegial agency within the EOP, was excluded from the coverage of the Act. 121 CONG. REC. 35324 (daily ed. Nov. 6, 1975). The CEQ is virtually identical to the CEA in structure and function. Contrary to the position taken by the PLF, which is that Senator Javits "was . . . referring to agencies whose sole function was policymaking in advise [sic] to the President,"¹³ the CEA's duties are not limited to rendering advice to the President. The CEA has the same information-gathering, program-appraising, and agency-consulting functions in the field of economic policy that the CEQ has in the field of environmental policy. Compare 15 U.S.C. §§ 1023(a), 1023(c)(1)-1023(c)(5), 1023(e) (Employment Act of 1946), with 42 U.S.C. §§ 4342, 4344(1)-4344(4), 4344(8), 4345 (NEPA). Because the CEQ was modeled after the CEA,¹⁴ the court is convinced that Senator Javits' interpretation of the Act's scope would apply with equal force to the CEQ's advisory functions.

The court's conclusion is not altered by the fact that the conduct of the CEQ's additional regulatory duties is exposed to public scrutiny under the agency's Sunshine Act regulations. Merely because CEQ meetings that involve discussions of proposed regulations are open to public view, it does not follow ineluctably, as the plaintiff seems to suggest, that Congress meant also to expose the Council's advice-giving decisional processes to public inspection. Nor does the decision of the court of appeals for this circuit in Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067 [1 ELR 20147] (1971), counsel such a result. The court in Soucie noted explicitly that the exposure of the "decisional processes of . . . executive officers with policy-making functions" was not at issue in that case. Id. at 155, 448 F.2d at 1078. In the court's view, therefore, the plaintiff has failed to establish that the CEQ has violated any requirements of the Sunshine Act.

An appropriate Judgment accompanies this Memorandum Opinion.

Judgment

Upon consideration of the defendants' Motion for summary Judgment and the opposition thereto, and the court having heard oral argument of counsel, and for the reasons set forth in the court's Memorandum Opinion filed this date, it is, by the court, this 19th day of June 1979,

ORDERED, ADJUDGED and DECREED that summary judgment be, and the same hereby is, entered for the defendants.

1. The court disagrees with the plaintiff that the absence of an explanation from the defendant Council members regarding the substance of overy Council meeting during the designated period is a material issue of fact precluding summary judgment on the PLF's claim under the Sunshine Act. The defendants do not argue that the Council's meetings between June 8, 1977 and January 10, 1979 did not involve the conduct of agency business. Rather, they contend that the Council held those meetings to formulate advice to the President and therefore that the agency's deliberations were not subject to the requirements of the Act. The substance of any particular meeting is not material to the court's resolution of the question whether the Act covers all Council meetings involving the joint disposition of the agency's business regardless of subject matter.

2. 115 CONG. REC. S17456 (daily ed. Dec. 20, 1969).

3. Exec. Order No. 11514 (Mar. 5, 1970); Exec. Order No. 11735 (Aug. 1, 1973); Exec. Order No. 11991 (May 24, 1977).

4. The Council also functions under the Environmental Quality Improvement Act, 42 U.S.C. §§ 4371-4374 (1976).

5. Declaration of Charles H. Warren (Warren Declaration).

6. Id. PP4, 25-48.

7. Id. P6; Exhibit 2 to Warren Declaration.

8. Id. PP2, 14, 18.

9. Defendants' Motion for Summary Judgment, pp. 8, 9. Where the defendants speak of "non-collegial action," they refer to actions taken by the Council members "either singly or collegially to provide advice or assistance to the President." Id. at 42. Although Council members may act collectively in their advisory capacity, they do not act "collegially" as that term is used by the defendants, because their actions are not taken pursuant to "an affirmative vote of at least two Council members." Id.

10. Complaint, P24.

11. The plaintiff's additional reliance upon the Supreme Court's decision in FTC v. Flotill Products, Inc., 389 U.S. 179 (1967), is misplaced. The issue before the Court in that case was how many members of a collegial body were required for the body to take formal collegial action, not when such a body could act non-collegially.

12. Defendants' Motion for Summary Judgment, p. 42.

13. Plaintiff's Opposition, p. 11, n.3 [sic].

14. See Hearings on S. 1075, S. 237 and S. 1752 before the Senate Committee on Interior and Insular Affairs, 91st Cong. 1st Sess. (Apr. 16, 1969), at 142.