United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 4, 2007 Decided May 25, 2007
No. 06-5132
NATURAL RESOURCES DEFENSE COUNCIL,
APPELLANT
v.
STEPHEN L. JOHNSON,
ADMINISTRATOR UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY AND
ENVIRONMENTAL PROTECTION AGENCY,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 05cv00340)
Benjamin H. Longstreth argued the cause for appellant.
With him on the briefs was Aaron Colangelo.
Alisa B. Klein, Attorney, U.S. Department of Justice, argued
the cause for appellees. With her on the brief were Peter D.
Keisler, Assistant Attorney General, Jeffrey A. Taylor, U.S.
Attorney, Jonathan F. Cohn, Deputy Assistant Attorney
General, and Mark B. Stern, Attorney. Angeline Purdy, Michael
T. Gray, and Teal L. Miller, Attorneys, entered appearances.
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Before: RANDOLPH, TATEL and BROWN, Circuit Judges.
PER CURIAM: The Natural Resources Defense Council sued
the Environmental Protection Agency, claiming that the Agency
violated statutory and regulatory reporting requirements in its
registration of two pesticides. One of NRDC’s claims was that
the Agency had not complied with the Federal Advisory
Committee Act (FACA), 5 U.S.C. App. 2 §§ 1-16. The district
court dismissed NRDC’s FACA claim for lack of standing
because, the court found, NRDC had not filed a formal request
with the Agency under the Freedom of Information Act (FOIA),
5 U.S.C. § 552. NRDC v. Johnson, 422 F. Supp. 2d 105, 116
(D.D.C. 2006). NRDC appeals that judgment, and we are
presented only with the question of standing. We hold that the
district court erred and therefore reverse.
The dispute arose out of the Agency’s registration
proceedings for pesticides containing atrazine. The Federal
Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C.
§§ 136-136y, requires the Agency to administer a pesticide
registration regime. The Agency first registered atrazine under
the statute in 1958. An amendment to FIFRA required the
Agency reregister atrazine. See id. § 136a-1(a). The
reregistration process involves several phases. See id. § 136a-
1(b). As relevant here, the Agency first determines whether an
active ingredient is “eligible” for reregistration, id. § 136a-
1(g)(1), (2)(A), and then decides on a product-by-product basis
whether to reregister the particular pesticide product, id. § 136a-
1(g)(2)(B), (C).
The Agency issued an Interim Reregistration Eligibility
Decision (IRED) in January 2003, announcing that products
containing atrazine would be eligible for reregistration if, among
other conditions, the registrants were able to provide data
confirming that atrazine did not cause unreasonable adverse
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effects. The Agency promised to work with the registrants to
help develop a monitoring program to collect the relevant data.
In a later IRED, the Agency described the monitoring program
it had developed along with the primary atrazine registrant,
Sygenta Crop Protection.
NRDC sued the Agency in district court, claiming the
committees that developed the ecological monitoring program
were “advisory committees” within the meaning of FACA and
therefore subject to FACA’s disclosure requirements. FACA
requires that advisory committees covered by the statute file a
charter, hold their meetings in public, and make committee
documents available to the public subject to the exemptions of
FOIA. 5 U.S.C. App. 2 §§ 9-10. Committee membership must
also be fairly balanced. Id. § 5(b)(2).
The district court held that in order to have standing, a
FACA plaintiff must show that “[it] sought and [was] denied
specific agency records.” Johnson, 422 F. Supp. 2d at 116
(alteration in original) (quoting Public Citizen v. Dep’t of
Justice, 491 U.S. 440, 449 (1989)). It was not enough that
NRDC wrote to “complain that the agency was violating
FACA”; it needed to “submit a FOIA request for documents.”
Id. (quotation marks omitted).
We held in Food Chemical News v. Department of Health
and Human Services, 980 F.2d 1468, 1472 (D.C. Cir. 1993), that
the government’s obligation to make documents available under
FACA does not depend on whether someone has filed a FOIA
request for those documents. FACA incorporates the FOIA
exemptions, see 5 U.S.C. App. 2 § 10(b), but the government’s
duty to disclose is otherwise independent of FOIA. We think it
follows that a plaintiff does not have to file a formal FOIA
request before bringing an action seeking a remedy for alleged
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FACA violations, including violations of the statute’s disclosure
requirements.
We decide nothing beyond this. Whether NRDC’s alleged
request that the Agency comply with FACA, see Compl. ¶ 54,
suffices to establish standing notwithstanding the Agency’s
release of the documents NRDC requested under FOIA is a
question for the district court on remand. We also do not
resolve the dispute between the parties about whether the
alleged FACA committee still exists and what the legal
consequences would be if it does not. See generally Byrd v.
EPA, 174 F.3d 239 (D.C. Cir. 1999). The district court’s
judgment is reversed, and the case is remanded for further
proceedings.
So ordered.