Giving sabers to a 'toothless tiger': the Federal Advisory Committee Act.

• Author: Morris, Douglas D.
• Position: Case Note

1. INTRODUCTION

   1. The Federal Advisory Committee Act

      The Federal Advisory Committee Act (FACA)(1) is not a mysterious piece of legislation. The legislative history is clear about the specific problems FACA addresses and FACA's text sets forth its requirements in a straightforward manner. Thus, analyzing FACA's purposes and requirements provides a standard for evaluating potential remedies.

      FACA has three basic purposes. First, Congress intended FACA to serve as a general check on the continued use and cost of advisory committees as a whole.(2) By the late 1950s, the unchecked spread of executive advisory committees was beginning to attract the regulatory attention of Congress.(3) Attempts by the executive branch to regulate its own committees(4) and stave off legislative action were unsuccessful: In 1970, Congress estimated that there were 2600, and possibly as many as 3200, advisory committees,(5) costing between $65 million and $75 million annually.(6) To solve this problem, Congress included provisions in FACA calling for government oversight of advisory committees.(7) FACA eliminates useless committees by requiring the expiration of every advisory committee within two years after FACA's effective date(8) or, for committees formed after this date, within two years after the date each committee was created.(9) Agencies may renew committees to continue using them, however.(10) While committees exist, they are subject to oversight and regulations promulgated by the General Services Administration (GSA).(11) Furthermore, each agency using advisory committees must file committee charters with the congressional body having oversight of that agency.(12) These provisions demonstrate that Congress recognized the utility of advisory committees, because FACA does not ban them altogether;(13) however, FACA's oversight requirements tend to discourage renewal of marginally useful advisory committees by subjecting agencies and their committees to more thorough legislative scrutiny. Thus, it is clear that FACA was intended to eliminate useless advisory committees while preserving their regulated availability for agencies that find committees helpful.

      FACA's second purpose was to "assur[e] openness in the operations of advisory committees."(14) By their nature, advisory committees are in a position to have a strong influence on agency lawmaking, yet neither the committees nor their use was previously subject to any public scrutiny. Congress enacted FACA as a way to combat the danger of hidden committees by exposing their use.(15) To achieve its goal of openness, Congress required advisory committees to conduct their meetings in public and to make their records available for public inspection.(16) In theory, this would "prevent the surreptitious use of advisory committees to further the interests of any special interest group."(17) FACA, therefore, is a tool to hold agencies and their advisory committees accountable to the public.

      As a third purpose, Congress intended FACA to combat the problem of inadequate public representation in advisory committee membership.(18) Before FACA, because the activities of advisory committees were unmonitored, the committees were susceptible to abuse.(19) Advisory committees were thus regularly used unfairly by special interest groups seeking an exclusive audience with regulatory agencies.(20) Congress intended to eliminate this practice of manipulation, which it saw as "[o]ne of the great dangers" of the unregulated use of advisory committees.(21) FACA thus requires that membership of an advisory committee be "fairly balanced."(22) FACA's "fairly balanced" requirement was clearly directed at prohibiting the "heavy representation of parties whose private interests could influence [the committees'] recommendations."(23)

      With but a few exceptions,(24) all advisory committees are subject to these requirements.(25) Probably because Congress was unsure just how many advisory committees there were, it defined "advisory committee" very broadly, to be sure to include every one.(26) Thus, FACA reaches out to impose its requirements on all groups "established or utilized" by the federal government.

      In Alabama-Tombigbee Rivers Coalition v. Department of Interior (Alabama-Tombigbee),(27) the Eleventh Circuit examined FACA's scope and determined that it applied to a group of nine scientists convened by the U.S. Fish and Wildlife Service (FWS) to independently address scientific matters related to the Alabama sturgeon, the Tenn-Tom Waterway, and the Endangered Species Act. Finding FACA to be applicable enabled the court to uphold a lower court's unprecedented use of an injunction for admitted FACA violations by FWS and the panel of scientists.

   2. The Alabama-Tombigbee Case and FACA's Role

      The Tenn-Tom Waterway connects the Tennessee and Tombigbee Rivers in Alabama. This waterway is a popular shipping route, providing a "short-cut" to the Gulf of Mexico,(28) and is kept open by dredging the river channel.

      On June 15, 1993, FWS proposed to list the Alabama sturgeon as an endangered species(29) under the Endangered Species Act.(30) This fish, once common in the Mobile River system,(31) is now extremely difficult to find--FWS reports only one confirmed catch of an Alabama sturgeon since five were caught in 1985.(32) FWS has indicated that river channel maintenance for navigation may be one of the causes of the Alabama sturgeon's decline.(33)

      The possible listing of the Alabama sturgeon aroused much public attention. The Alabama-Tombigbee Rivers Coalition (Coalition) is composed of thirty-four businesses interested in keeping the Alabama sturgeon from being listed as an endangered species.(34) The Coalition was concerned that if the Alabama sturgeon were listed as endangered, then continued dredging would be forbidden and shipping companies would be unable to use the Tenn-Tom and other waterways, in turn causing the loss of thousands of jobs.(35) The Alabama congressional delegation shared this concern and asked FWS to reschedule its public hearing.(36) Ultimately, when the hearing was held, the college auditorium was too small to accommodate all of the people interested in attending.(37)

      During the decision-making process, comments submitted to FWS caused the agency to focus its investigation on three areas of inquiry: 1) whether the Alabama sturgeon was a distinct species, 2) whether the fish was already extinct, and 3) what evidence might be used to conclude that the fish was already extinct.(38) FWS gathered a group of four ichthyologists to study these questions.(39) The Alabama congressional delegation objected to the original composition of the panel and submitted a list of six scientists for proposed inclusion on the panel.(40) In response, FWS reconstituted the panel with nine members. While none of the new members were on the list submitted by the Alabama congressional delegation, three were members on the original panel.(41)

      The nine scientists composing the panel were requested to submit individual reports.(42) From October 26 to 28, 1993, they met with the Deputy Director of FWS to review the data.(43) These meetings were not open to the public.(44) During the meetings, because the counsel for the Coalition had sent them letters warning of a potential conflict of interest, and because they were concerned about possible repercussions, the scientists convinced the Deputy Director to accept a joint report.(45) The scientists' joint report, submitted on November 5, 1993, concluded that 1) the Alabama sturgeon was a distinct species, and 2) the fish was not extinct.(46) That same day, the Coalition filed a complaint in the U.S. District Court for the Northern District of Alabama.(47) The Coalition challenged the report on the grounds that the panel did not comply with FACA.(48) Contrary to FACA's publicity requirements, however, the Coalition sought an injunction against the report's dissemination.(49) Furthermore, the Coalition sought to enjoin FWS from using the report in any rulemaking.(50) The district court granted a preliminary injunction on November 9, 1993,(51) and a permanent injunction on December 22, 1993.(52) The court noted that FWS had conceded that it had violated FACA.(53) The court then held that denying the Coalition a remedy would be rendering FACA a "toothless tiger" and stated: "A simple 'excuse us' cannot be sufficient."(54) The court permanently enjoined FWS from directly or indirectly relying on the scientists' report in deciding whether to list the Alabama sturgeon as an endangered species.(55)

      On appeal, in Alabama-Tombigbee, the Eleventh Circuit upheld the injunction,(56) stating that FACA's purpose was to open advisory commit tees to "public observation and comment,"(57) and citing a Supreme Court decision that found FACA's purpose was to make advisory committees accountable to the public.(58) Strangely, however, after noting the openness purposes of FACA, the court affirmed the injunctions prohibiting the re port's public dissemination and against FWS's use of the report in its rulemaking.(59) The court held that it would be meaningless to allow FWS to satisfy FACA's requirements after the committee's work was done.(60) It affirmed the injunction because to do otherwise would allow the government to circumvent FACA's contemporaneous openness requirements.(61)

      In Alabama-Tombigbee, the Eleventh Circuit upheld an unprecedented injunction. No other court had interrupted a rulemaking to enjoin an agency from using information submitted by a FACA-violating advisory committee. Whether the decision was correct depends on the scope of the federal courts' injunctive power. This Note argues that the injunction in Alabama-Tombigbee falls outside the traditional application of the injunction and was therefore incorrect.

      Part II of this Note examines the injunctive power of the federal courts, which provides the basis for evaluating the Eleventh Circuit's decision. Part...