Union of Concerned Scientists v. EPA

United States Court of Appeals
For the First Circuit

No. 19-1383

UNION OF CONCERNED SCIENTISTS and ELIZABETH ANNE SHEPPARD,

Plaintiffs, Appellants,

v.

ANDREW WHEELER, in his official capacity as Administrator of the
Environmental Protection Agency, and UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before

Torruella, Lynch, and Kayatta,
Circuit Judges.

Zachary C. Schauf, with whom Lindsay C. Harrison, Samuel C.
Birnbaum, Julian J. Ginos, Jenner & Block LLP, Justin Florence,
Benjamin L. Berwick, Jamila G. Benkato, and The Protect Democracy
Project were on brief, for appellants.
Robert W. Ferguson, Attorney General of Washington, and Kelly
T. Wood, Assistant Attorney General, Washington State Attorney
General's Office, Counsel for Environmental Protection, were on
brief for amici curiae the states of Washington, California,
Connecticut, Illinois, Maryland, New Jersey, New York, Oregon,
Pennsylvania, the Commonwealth of Massachusetts, and the District
of Columbia.
Shaun A. Goho, Lynne I. Dzubow, and the Emmett Environmental
Law & Policy Clinic, Harvard Law School, were on brief for amici
curiae Lynn R. Goldman, Bernard Goldstein, David Michaels, Kenneth
Olden, Bob Perciasepe, and Terry Yosie.
Jeffrey E. Sandberg, Attorney, Appellate Staff, Civil
Division, U.S. Department of Justice, with whom Joseph H. Hunt,
Assistant Attorney General and Mark B. Stern, Attorney, Appellate
Staff, Civil Division were on brief, for appellees.

March 23, 2020
 KAYATTA, Circuit Judge. This case arises from a

directive issued by the EPA that prohibits EPA grant recipients

-- who are mostly employed by universities and other nonprofit

institutions -- from sitting on the EPA's twenty-two scientific

advisory committees. A group of scientists affected by the

directive complains that the directive violates the Federal

Advisory Committee Act (FACA), Pub. Law 92-463, 86 Stat. 770 (1972)

and the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq.,

Pub. L. 79–404, 60 Stat. 237 (1946). After the district court

dismissed the complaint for a lack of justiciability and failure

to state a claim, the plaintiffs timely appealed the dismissal of

Counts I, III, and IV. Because the EPA's challenged directive is

judicially reviewable under the APA, we reverse in part and remand

for further proceedings.

I.

At the time the complaint was filed, the EPA had twenty-

two advisory committees, nine of which are established by statute.

Those nine include the Clean Air Scientific Advisory Committee

("CASAC"), see 42 U.S.C. § 7409(d)(2)(A), and the Science Advisory

Board ("SAB"), see 42 U.S.C. § 4365. The other thirteen are

created by presidential directive or by the EPA under its

discretionary authority. See 5 U.S.C. app. 2 § 3(2). The general

purpose of such advisory committees is to provide "expert advice,

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ideas, and diverse opinions" to the agency. 5 U.S.C. app. 2

§ 2(a).

Committee membership decisions are largely left to

agency discretion, see 41 C.F.R. § 102-3.130(a), and agencies have

considerable latitude to establish committees' "administrative

guidelines and management controls," 5 U.S.C. app. 2 § 8(a). Some

EPA committees are subject to more explicit statutory dictates as

to their membership. For example, CASAC is required to have "at

least one member of the National Academy of Sciences, one

physician, and one person representing State air pollution control

agencies." 42 U.S.C. § 7409(d)(2)(A). SAB's members "shall be

qualified by education, training, and experience to evaluate

scientific and technical information on matters referred to the

Board." Id. § 4365. Advisory committee members are usually

appointed for two- or three-year terms and are frequently

reappointed.

The EPA's advisory committees have historically been

subject to overlapping schemes of ethics checks. See Office of

the Inspector General, U.S. EPA, Report No. 13-P-0387, EPA Can Better

Document Resolution of Ethics and Partiality Concerns in Managing

Clean Air Federal Advisory Committees, at 8–10 (Sept. 11, 2013)

[hereinafter "OIG Report"], http://epa.gov/sites/production/files

/2015-09/documents/20130911-13-p-0387.pdf. Generally, advisory-

committee members, who are considered "special government

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employees," see 18 U.S.C. § 202(a), are subject to regulations set

out by the U.S. Office of Government Ethics ("OGE"). The

regulations make clear that each committee member is:

prohibited by criminal statute from
participating personally and substantially in
an official capacity in any particular matter
in which, to his knowledge, he or any person
whose interests are imputed to him under [the]
statute has a financial interest, if the
particular matter will have a direct and
predictable effect on that interest.

5 C.F.R. § 2635.402(a) (citing 18 U.S.C. 208(a)); see also OIG

Report, supra, at 8. Some waivers are possible, and there are

exemptions. OIG Report, supra, at 8–9. For example, a committee

member "may participate in any particular matter of general

applicability where the disqualifying financial interest arises

from his non-Federal employment . . . provided that the matter

will not have a special or distinct effect on the employee or

employees other than as part of a class." 5 C.F.R. § 2640.203(g).

Agencies may add additional ethics rules with OGE's "concurrence."

Id. § 2635.105(a).

The EPA has additional conflict-of-interests rules of

its own, including internal policies for identifying potential

financial conflicts of interest. OIG Report, supra, at 9. Active

committee members must complete a conflicts form annually, which

requires them to supply information on paid work, assets, funding,

and other activities. Id. The forms are reviewed by an ethics

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officer, and if potential problems are identified the member may

be required to "take action to mitigate the concern." Id.1

The EPA administers several grant programs to fund

scientific research, ultimately awarding over $4 billion in grants

every year. EPA, EPA Grants Overview for Applicants and

Recipients, https://www.epa.gov/grants/epa-grants-overview-

applicants-and-recipients; see, e.g., 42 U.S.C. § 7403(b)(3)

(Clean Air Act provision authorizing the EPA administrator to make

grants); 33 U.S.C. § 1254(b)(3) (Clean Water Act provision

authorizing the EPA administrator to make grants). Advisory

committees do not participate in the EPA's grant-making decisions.

Traditionally, EPA grant recipients have been permitted to serve

on advisory committees while they are receiving EPA grants. The

EPA's Inspector General explained in 2013 that "[t]he EPA does not

consider a prospective or current member's receipt of an agency or

other federal research grant to create the basis for a financial

conflict of interest." OIG Report, supra, at 9.

1
The OIG Report analyzed whether the EPA had properly managed
potential conflicts of interest on CASAC and one other committee
(the Advisory Council on Clean Air Compliance Analysis). OIG
Report, supra, at 1. The report determined that the EPA had proper
procedures for conflicts of interest but that they were not always
clearly followed. Id. at 19 ("The SAB Staff Office has adequate
procedures for identifying independence and impartiality
concerns."). It recommended that the Science Advisory Board Staff
Office, which "manages the CASAC and Council," id. at 5, develop
better procedures for documenting investigations on conflicts of
interest, id. at 14–17, 19–20.

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 So stood matters until October 2017, when the EPA's

former director, E. Scott Pruitt, issued a directive called

"Strengthening and Improving Membership on EPA Federal Advisory

Committees." The directive sets out four principles. The

principle labeled "Strengthen Member Independence" is the one to

which the plaintiffs object. It reads as follows:

Members shall be independent from EPA, which
shall include a requirement that no member of
an EPA federal advisory committee be currently
in receipt of EPA grants, either as principal
investigator or co-investigator, or in a
position that otherwise would reap substantial
direct benefit from an EPA grant. This
principle shall not apply to state, tribal or
local government agency recipients of EPA
grants.

The directive is accompanied by a five-page explanatory memo, of

which approximately half a page is dedicated to the objected-to

principle. It states in pertinent part:

A vital part of ensuring integrity and
confidence in EPA's [advisory committees]
comes from guaranteeing that [advisory
committee] members remain independent of the
Agency during their service. EPA [advisory
committee] members should avoid financial
entanglements with the EPA to the greatest
extent possible.

Non-governmental and non-tribal members
in direct receipt of EPA grants while serving
on an EPA [advisory committee] can create the
appearance or reality of potential
interference with their ability to
independently and objectively serve as a[n
advisory committee] member. [Advisory
committee] members should be motivated by

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 service and committed to providing informed
and independent expertise and judgment.

The memo then otherwise largely repeats the language of the

principle on strengthening member independence.

The complaint alleges that the new directive

disqualifies "thousands of scientists affiliated with academic and

not-for-profit institutions." And precisely because those

scientists who receive EPA grants tend to be leaders in their

fields, the directive is said to target many of the most

knowledgeable scientists who are not affiliated with industry.

Some of the scientists have responded by surrendering grants in

order to continue serving their country. But, the plaintiffs

explain, many cannot make this sacrifice. As a result, the

plaintiffs allege that the directive has quickly and materially

increased the participation of industry-affiliated scientists on

EPA committees. On the SAB, for example, the number of industry-

affiliated scientists has tripled.

One of the scientists forced to step off an EPA grant in

order to remain a CASAC member was plaintiff Elizabeth Anne

Sheppard. Dr. Sheppard teaches environmental health science and

biostatistics at the University of Washington. Until the directive

issued, she served as co-lead investigator on a $3 million EPA

grant for researching health effects of air pollution. She and

the Union of Concerned Scientists, a nonprofit organization that

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describes itself as representing the scientific community,

commenced this suit in January 2018. They seek both a declaration

that the directive's bar on grant-recipient advisory committee

members was unlawful and an injunction against it. The complaint

included four counts. Count I of the complaint alleges that the

directive violates the APA's reasoned decision-making standard,

Count II alleges that the directive conflicts with directives

issued by the General Services Administration and regulations of

the Office of Governmental Ethics, and Counts III and IV allege

violations of FACA's requirements for advisory committees.

The district court dismissed all the counts, finding

that they raised questions unreviewable under the APA and,

alternatively, that the first and second counts failed to state a

claim on the merits. Union of Concerned Scientists v. Wheeler,

377 F. Supp. 3d 34, 43–49 (D. Mass. 2017). The plaintiffs now

appeal the district court's dismissal of Counts I, III, and IV.

II.

This court reviews a grant of a motion to dismiss, see

Fed. R. Civ. P. 12(b)(6), de novo, assuming that all pleaded facts

and reasonable inferences drawn from them are true, Breiding v.

Eversource Energy, 939 F.3d 47, 49, 52 (1st Cir. 2019). We also

review de novo the question of whether a claim is justiciable under

the APA. See Massachusetts v. U.S. Nuclear Regulatory Comm'n, 708

- 9 -
F.3d 63, 73 (1st Cir. 2013) ("Errors of law are reviewed de

novo.").

A.

Congress enacted FACA in substantial part to "provide

uniform standards for the creation, operation, and management of

[advisory] committees." S. Rep. No. 92-1098, at 1 (1972)

(statement of purpose). The Act followed on the heels of a

disclosure that "the [Office of Management and Budget], without

statutory authority, had established close liaison with an

Advisory Council on Federal Reports (ACFR) composed entirely of

business officials from each of the major industries" but not

"consumer, labor, []or small business representatives." Id. at 2.

The statute itself requires a committee's implementing legislation

to "require the membership of [any] advisory committee to be fairly

balanced in terms of the points of view represented and the

functions to be performed by the advisory committee." 5 U.S.C.

app. 2 § 5(b)(2) ("fair balance provision"). It also requires

that such legislation "contain appropriate provisions to assure

that the [committee's] advice and recommendations . . . will not

be inappropriately influenced by the appointing authority or by

any special interest, but will instead be the result of the

advisory committee’s independent judgment." Id. § 5(b)(3)

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("inappropriate influence provision").2 Agency heads "shall"

follow these guidelines in creating an advisory committee. Id.

§ 5(c). The EPA suggests that § 5(b) applies only to legislation,

and thus provides no restraint on the agency's own selection of

advisory committee members. But § 5(c) extends those same

requirements to "the President, agency heads, or other federal

officials in creating an advisory committee" "[t]o the extent they

are applicable." FACA thus effectively reduces agencies' formerly

absolute discretion over advisory committees for the "principal

purpose" of "enhanc[ing] [their] public accountability." Pub.

Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 459 (1989).3 In

accordance with that purpose, the statute uses the word "shall,"

which generally signals that compliance is mandatory. 5 U.S.C.

app. 2 § 5(b)–(c); see Murphy v. Smith, 138 S. Ct. 784, 787 (2018)

("[T]he word 'shall' usually creates a mandate, not a

liberty. . . ."); Lexecon Inc. v. Milberg Weiss Bershad Hynes &

Lerach, 523 U.S. 26, 35 (1998) ("[T]he mandatory 'shall' . . .

2 Deciding this appeal does not require that we consider how
or whether one statute may dictate the terms of a subsequent
statute.
3 Legislative history suggests that Congress found these two
provisions of FACA to be "[p]articularly important." H.R. Rep.
No. 92-1017, at 5 (1972), reprinted in 1972 U.S.C.C.A.N. 3491,
3495–96. Congress was particularly concerned about the potential
for "special interest groups [to] use their membership on such
bodies to promote their private concerns." Id.

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normally creates an obligation impervious to judicial

discretion.").

Each of the three counts that plaintiffs press on appeal

describes the EPA's issuance of the Directive as "arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance

with law." Collectively, they offer three reasons why this is so:

the directive violates FACA's fair balance provision (Count III);

the directive violates FACA's inappropriate influence provision

(Count IV); and the EPA offered no rational explanation for

adopting the directive, especially given that it changed prior

policy (Count I). We address first Counts III and IV, the APA

claims predicated on violations of FACA.

1.

FACA contains no private right of action. The APA,

however, generally provides a vehicle for reviewing agency

decisions that are alleged to violate federal law. See Cowels v.

Fed. Bureau of Investigation, 936 F.3d 62, 66 (1st Cir. 2019) ("The

[APA] waives federal sovereign immunity for suits alleging injury

by agency action.") (citing 5 U.S.C. § 702). There is a "strong

presumption" of judicial review under the APA. Mach Mining, LLC

v. EEOC, 575 U.S. 480, 486 (2015); see also NAACP v. Sec'y of

Housing & Urban Dev., 817 F.2d 149, 152 (1st Cir. 1987) ("[F]ederal

action is nearly always reviewable for conformity with statutory

obligations . . . .").

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 Notwithstanding that strong presumption, agency actions

can evade judicial review under the APA if they are "committed to

agency discretion by law." 5 U.S.C. § 701(a)(2).4 Such a

commitment exists when the agency action is of a kind

"traditionally regarded as committed to agency discretion,"

Lincoln v. Vigil, 508 U.S. 182, 192 (1993), or when the relevant

statute "is drawn so that a court would have no meaningful standard

against which to judge the agency's exercise of discretion," id.

at 191 (citing Heckler v. Chaney, 470 U.S. 821, 831 (1985)).

Two months after the district court issued its judgment

in this case, the Supreme Court issued an opinion emphasizing that

the § 701(a)(2) exception to the presumption of reviewability is

"quite narrow[]." Dep't of Commerce v. New York, 139 S. Ct. 2551,

2568 (2019). In New York, the Court explained that the Census

Bureau's decision to include a question about citizenship on the

2020 census was reviewable for its compliance with the Census Act.

Id. at 2567–69. The Court explained that "the taking of the census

is not one of those areas traditionally committed to agency

discretion." Id. at 2568. As examples of such areas, the court

pointed only to "decision[s] not to institute enforcement

proceedings" and "a decision by an intelligence agency to terminate

4 Review of an agency action is also unavailable where
"statutes preclude judicial review." 5 U.S.C. § 701(a)(1).
Neither party argues that this exception applies here.

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an employee in the interests of national security." Id. (citing

Chaney, 470 U.S. at 831–82; Webster v. Doe, 486 U.S. 592, 600–01

(1988)); see also Weyerhauser Co. v. U.S. Fish and Wildlife Serv.,

139 S. Ct. 361, 370 (2018) ("The few cases in which we have applied

the § 701(a)(2) exception involved agency decisions that courts

have traditionally regarded as unreviewable, such as the

allocation of funds from a lump-sum allocation, or a decision not

to reconsider a final action." (internal citations omitted)).

The Court also determined that the Census Act was not

"drawn so that it furnishe[d] no meaningful standard" to apply.

New York, 139 S. Ct. at 2568–69. Despite the fact that the Act

"confer[red] broad authority on the Secretary," including

"instruct[ing] him to take 'a decennial census of population' in

'such form and content as he may determine,'" it also set out

standards to guide the content of the Census (including "the extent

to which . . . statistical sampling" could be used and methods of

collecting information). Id.

We apply the teaching of New York to the case before us.

First, as to whether the make-up of agency advisory committees is

an area traditionally left to agency discretion, the EPA has

pointed us to nary a case that would suggest as much. It simply

argues that advisory committee policies involve "the 'complicated

balancing of a number of factors which are peculiarly within [the

agency's] expertise,'" quoting Vigil, 508 U.S. at 191. But that

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description applies to most things that the EPA does, including

mandated non-discretionary activities. Moreover, while agency

discretion in handling advisory committees may have been

unfettered prior to 1972, FACA itself was the result of Congress's

determination that some fetters were needed. Congress mandated

that "[t]o the extent they are applicable, the guidelines set out

in subsection (b) [of FACA] . . . shall be followed by . . . agency

heads." 5 U.S.C. app. 2 § 5(c). This is not the type of language

Congress employs to create or preserve an area so traditionally

left to agency discretion as to constitute an exception to the

normal rule of justiciability.5

Second, as to whether FACA furnishes any meaningful

standards that a reviewing court can apply, we train our attention

on FACA'S fair balance and inappropriate influence standards. The

EPA claims that neither standard is "[j]udicially [m]anageable,"

because, according to the EPA, neither offers a "meaningful

standard against which to judge the agency's exercise of

discretion," quoting Chaney, 470 U.S. at 830.

We disagree with the EPA that courts are not well

equipped to enforce at least the outer boundaries of ranges of

5 To the extent the EPA is arguing that these are essentially
hiring decisions committed to agency discretion, the argument
fails. These are clearly not individual hiring decisions committed
to discretion, but an agency-wide policy addressed to special
function committees.

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this type. See, e.g. New York, 139 S. Ct. at 2568–69 (relying on

the secretary's "duty to conduct a census that is accurate and

that fairly accounts for the crucial representational rights that

depend on the census and the apportionment" (emphasis added));

Weyerhauser, 139 S. Ct. at 371 (relying on law that "requires the

[s]ecretary to consider economic impact and relative benefits").

Nor does the fact that the statute leaves a great deal of

discretion to the agency, see 5 U.S.C. app. 2 § 8(a), make actions

taken pursuant to it unreviewable. See Weyerhauser, 139 S. Ct. at

370 ("A court could never determine that an agency abused its

discretion if all matters committed to agency discretion were

unreviewable."); Chaney, 470 U.S. at 829–30 (clarifying that a

contrary approach would render APA review meaningless); Dugan v.

Ramsay, 727 F.2d 192, 195 (1st Cir. 1984) (explaining that the

"fact that an agency enjoys broad discretionary powers does not

mean judicial review is forbidden"). Here, for example, if the

agency announced that only persons paid by a regulated interested

business could serve on a committee, we would expect that FACA's

fair balance and inappropriate influence standards would supply a

meaningful tool for reviewing such a new policy. See H.R. Rep. No.

92-1017, at 6 (1972), reprinted in 1972 U.S.C.C.A.N. 3491, 4596

(identifying "representatives of industry" as parties whose

"private interests" could be affected by the agency's work as

special interests). To rule otherwise would be to conclude that FACA

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failed to put an enforceable end to one of the very types of advisory

relationships that prompted Congress to enact it in the first place.

There are certainly many different points of view that

the EPA might take into account in forming its committees and

different balances that can be struck in a committee's membership.

Nevertheless, FACA clearly requires agency heads at least to

consider whether new restraints on committee membership might

inappropriately enhance special interest influence and to eschew

such restraints when they do so. That requirement is at least as

manageable as the requirements set out in the Census Act. See New

York, 139 S. Ct. at 2568-69. The concepts of fairness, balance,

and influence are not foreign to courts, and we are certainly

capable of reviewing agency actions with reference to those

concepts in at least some factual scenarios.

The EPA's position also ignores the important point that

the APA provides for judicial review of both procedure and

substance. See 5 U.S.C. § 706(2)(A) (prohibiting both actions

that are "arbitrary" or "capricious" and actions "otherwise not in

accordance with law"); Moss, 708 F.3d at 73 ("An agency's decision

is not arbitrary and capricious if that decision was based on

consideration of the relevant factors, and if the agency did not

commit a clear error of judgment."); H.R. Rep. No. 1980, at 276

(1946) (explaining that in order to prevail under § 706 a

complainant "must show that the action is contrary to law in either

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substance or procedure" (emphasis added)); see also Bennett v.

Spear, 520 U.S. 154, 172 (1997) ("It is rudimentary administrative

law that discretion as to the substance of the ultimate decision

does not confer discretion to ignore the required procedures of

decision[-]making."). The EPA points out that the proper balance

of viewpoints will likely differ between committees simply by

virtue of the fact that the "functions to be performed" by each

committee, 5 U.S.C. app. 2 § 5(b)(2) -- which the agency is

instructed to consider in balancing committee membership -- are

different. But that is hardly a sufficient response to a

congressional command that each of the committees be fairly

balanced. Further, we see no reason why a court could not consider

the functions assigned to each individual committee in evaluating

whether its balance is fair.

Here, the EPA has admittedly changed a long-standing

practice. And it has done so in a manner that the complaint

plausibly describes as altering the balance and the role of special

interest influence on EPA advisory committees. Plaintiffs also

contend that the agency's justification for increasing the

relative role of special interests is itself irrational and refuted

by the agency's targeting of only EPA grant recipients who are not

affiliated with states, local governments, or tribes. In this

context, FACA's standards tell us what Congress intended the EPA

to consider, and the APA's reasoned decision-making standards tell

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us how the EPA is to go about making and explaining that

consideration. As a result, sufficient standards exist for

meaningful review of the decision-making process at issue here --

even if the standards themselves preserve wide agency discretion.

We acknowledge that there is some dispute among our

sister circuits on this question of whether FACA's fair balance

and inappropriate influence provisions are reviewable under the

APA. Our approach here accords with the majority view.6 And in

any case, the contrary decisions were made before the Supreme

6
See Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1231–34
(10th Cir. 2004) (finding the fair membership balance requirement
set out in FACA's implementing regulations justiciable, 43 C.F.R.
§ 1784.2–1(a) (roughly echoing FACA § 5(b)(2)), but that FACA's
inappropriate influence provision did not provide a meaningful
standard to apply); Cargill, Inc. v. United States, 173 F.3d 323,
334–41 (5th Cir. 1999) (finding that FACA's fair balance and
inappropriate influence provisions were reviewable); Ala.-
Tombigbee Rivers Coal. v. Dep't of Interior, 26 F.3d 1103, 1106–
07 (11th Cir. 1994) (conducting review under FACA's fair balance
provision, though not expressly addressing a challenge to its
reviewability); Pub. Citizen v. Nat'l Advisory Comm. on
Microbiological Criteria for Foods, 886 F.2d 419, 426, 432–34 (D.C.
Cir. 1989) (Edwards, J., concurring) (finding the fair balance and
inappropriate influence provisions reviewable); see also id. at
420–26 (Friedman, J., concurring) (reaching the merits as to
whether the challenged action violated FACA). But see Ctr. for
Policy Analysis on Trade and Health v. U.S. Trade Rep., 540 F.3d
940, 943–45 (9th Cir. 2008) (finding FACA's fair balance
requirement not reviewable in the particular scenario complained
of because it provided "no meaningful standards to apply" nor
"articulate[d] what perspectives must be considered"); Pub.
Citizen, 886 F.2d at 426, 430–31 (Silberman, J., concurring)
(finding the fair balance and inappropriate influence requirements
not reviewable because there was no "meaningful standard . . .
susceptible of judicial application").

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Court's decision in New York, which, as we have described above,

provides more clarity on this issue.

In sum, FACA requires the EPA to maintain a fair balance

on its committees and to avoid inappropriate influences by both

the appointing authority and any special interest. Plaintiffs

allege that the directive skewed the composition of EPA committees

in favor of regulated industries. They further allege that the

EPA offered no rational reason for finding that any benefits of

the policy justified the alteration of balance and influence on

the committees. Indeed, the allegation is that the EPA did not

even acknowledge that the directive had such an effect. These

allegations plausibly state claims for judicial review under the

APA. So we remand this case to the district court for further

proceedings on Counts III and IV.7

2.

Unlike Counts III and IV, Count I alleges violations of

only the APA itself. It specifically relies on 5 U.S.C.

§ 706(2)(A), which prohibits agency decisions that are "arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance

with law." We have previously explained that

An agency decision fails to pass this test if
the administrative record reveals that "the

7
We anticipate that further proceedings on Counts III and IV
will include the compiling and certification of the administrative
record, customarily "[t]he focal point of APA review." Atieh v.
Riordan, 727 F.3d 73, 76 (1st Cir. 2013).

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 agency relied on improper factors, failed to
consider pertinent aspects of the problem,
offered a rationale contradicting the evidence
before it, or reached a conclusion so
implausible that it cannot be attributed to a
difference of opinion or the application of
agency expertise."

Atieh v. Riordan, 727 F.3d 73, 75–76 (1st Cir. 2013) (quoting

Assoc'd Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st

Cir. 1997)); see also Motor Vehicle Mfrs. Ass'n of U.S., Inc. v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Claims

under § 706(2)(A) are subject to the same limits on reviewability

set forth at § 701(a), see Chaney, 470 U.S. at 828, and the EPA

argues that Count I is not reviewable for largely the same reasons

as Counts III and IV.

The principal difference between Count I and Counts III

and IV is that Count I alleges a violation of the reasoned

decision-making standards of the APA alone. The EPA thus argues

that § 706(2)(A) does not itself provide the "meaningful standard"

required for review under Chaney, 470 U.S. at 830. See Lunney v.

United States, 319 F.3d 550, 559 n.5 (2d Cir. 2003) ("We . . .

note that the APA's 'arbitrary and capricious' standard, see 5

U.S.C. § 706(2)(A), cannot be sufficient by itself to provide the

requisite 'meaningful standard' for courts to apply in evaluating

the legality of agency action. See Chaney, 470 U.S. at 829–30.

If agency actions could be challenged as 'arbitrary and

capricious,' without reference to any other standard, then

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§ 701(a)(2)'s limitation on APA review would amount to no

limitation at all . . . ." (emphasis in original)).

The plaintiffs counter that they can rely wholly on

§ 706(2)(A) to provide a standard for review, citing Robbins v.

Reagan, 780 F.2d 37 (D.C. Cir. 1985). Even Robbins, however,

relied on external standards:

While the absence of clear statutory
guidelines might at times hamper a court's
ability to deem agency action contrary to law,
it need not always do so. Even where there
are no clear statutory guidelines, courts
often are still able to discern from the
statutory scheme a congressional intention to
pursue a general goal.

Id. at 45.

We are unable to locate any case in which we have decided

a claim under § 706(A)(2) without the benefit of an additional set

of statutory or regulatory requirements to guide us in assessing

the propriety of an agency's procedures in a matter. While we

have not clearly defined the outer limits of the types of "law"

that may furnish meaningful standards for deciding claims under

§ 706(2)(A), see Cowels, 936 F.3d at 66–67 (declining to decide

whether the FBI's National DNA Index System Manual was sufficient

to provide law to apply), statutes constraining or guiding the

relevant agency's discretion surely qualify if they create

"judicially manageable standards," as required by § 701(a)(2),

Chaney, 470 U.S. at 830; see, e.g. City of Taunton v. EPA, 895

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F.3d 120, 124–29 (1st Cir. 2018), cert. denied, 139 S. Ct. 1240

(2019) (relying on the Clean Water Act to guide a claim under

§ 706(A)(2)).

Whether a court could entertain a so-called "pure APA"

action without reference to another substantive statute is a

question we need not and do not decide. The thrust of plaintiffs'

claim is that the challenged EPA action was arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with the

law precisely because the EPA failed to rationally consider and

explain the effects of the directive under FACA's standards. The

plaintiffs do cite as background other statutes and regulations

erecting committees and setting out a baseline ethics regime,

including 18 U.S.C. § 208 and OGE's regulations, described above.

But they make no claim that this background plays any role distinct

from the role it plays under Counts III and IV. That is, these

statutes and regulations may certainly provide context for the

agency's actions as they are evaluated under Counts III and IV,

but nothing in the complaint points to any noncompliance with them.

Ultimately, the outcome of this litigation will turn on

the resolution of APA review under Counts III and IV, which

incorporate the plaintiffs' complaints about the EPA's decision-

making process. That is, Counts III and IV are APA claims and

plaintiffs point us to no fact or theory that could be considered

under Count I but not Counts III and IV. Cf. Cousins v. Sec'y of

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the U.S. Dep't of Transp., 880 F.2d 603, 605–07 (1st Cir. 1989)

(en banc) (explaining that the plaintiff's claim based on a federal

Department of Transportation rule was more properly conceived as

an APA challenge, and did not justify an analysis of whether a

private right of action should be implied under the Rehabilitation

Act, given that "[t]he APA was intended to provide . . . a single

uniform method for review of federal agency action"). In the end,

plaintiffs made clear in their reply and at oral argument that

Count I should be read as relying on FACA, at least unless we find

FACA insufficient to provide a justiciable standard. And since we

agree with plaintiffs that FACA does provide justiciable

standards, we will treat Count I as subsumed in Counts III and IV.

As a result we affirm the district court's dismissal of Count I as

a free-standing claim and direct the District Court to apply the

standards set forth in § 706(2)(A) to its analysis of Counts III

and IV.

B.
The EPA also argues that the plaintiffs' claims are not

ripe because the plaintiffs have not shown that the directive has

actually excluded scientists affiliated with academic and non-

profit institutions in a way that has caused or will cause

imbalance on the committees. The EPA acknowledged at oral

argument, however, that after the directive went into effect,

committee members including plaintiff Sheppard had to choose

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between their EPA grants and committee memberships immediately,

and some individuals left their committees for that reason. That

is to say, "[r]esolution of the actual claim[s] here . . . hinges

on an assessment of events that have already occurred." Town of

Barnstable v. O'Connor, 786 F.3d 130, 143 (1st Cir. 2015).

The EPA seems also to make a mootness argument along the

lines that, now that Sheppard's term of service on the CASAC has

ended, she no longer faces the choice created by the directive.

But the plaintiffs have argued that historically committee members

have served multiple terms of service. And in any case, the

plaintiffs seek declaratory judgment. If they are successful and

the EPA is forced to abandon the directive, grant recipients will

again be permitted to sit on the EPA's committees. So long as

there is some "concrete interest, however small, in the

outcome . . ., the case is not moot." Id. at 142 (quoting Knox v.

Serv. Emps. Int'l Union, Local 1000, 567 U.S. 298, 307–08 (2012)).

To the extent the EPA makes a mootness argument, it too fails.

III.

For the foregoing reasons, we reverse the district

court's decision on Counts III and IV, and remand for further

proceedings consistent with our decision, which should include the

dismissal of Count I without prejudice to further proceedings on

Counts III and IV.

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