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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
------------------------------------------------*
FLUE-CURED TOBACCO COOPERATIVE
STABILIZATION CORPORATION; UNIVERSAL
LEAF TOBACCO COMPANY,
INCORPORATED; PHILIP MORRIS,
INCORPORATED; RJ REYNOLDS TOBACCO
COMPANY; GALLINS VENDING COMPANY,
Plaintiffs-Appellees,
and
COUNCIL FOR BURLEY TOBACCO,
INCORPORATED; BROWN & WILLIAMSON
TOBACCO CORPORATION,
Plaintiffs,
v.No. 98-2407
THE UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; CAROL M.
BROWNER, Administrator,
Environmental Protection Agency,
Defendants-Appellants,
PUBLIC CITIZEN; AMERICAN HEART
ASSOCIATION; AMERICAN CANCER
SOCIETY; AMERICAN COLLEGE OF CHEST
PHYSICIANS; AMERICAN COLLEGE OF
PREVENTIVE MEDICINE; NATIONAL
CENTER FOR TOBACCO-FREE KIDS;
WASHINGTON LEGAL FOUNDATION,
Amici Curiae,
and
------------------------------------------------*
------------------------------------------------*
AMERICAN PUBLIC HEALTH ASSOCIATION;
AMERICAN LUNG ASSOCIATION,
Movants.
------------------------------------------------*
------------------------------------------------*
FLUE-CURED TOBACCO COOPERATIVE
STABILIZATION CORPORATION;
COUNCIL FOR BURLEY TOBACCO,
INCORPORATED; UNIVERSAL LEAF
TOBACCO COMPANY, INCORPORATED;
PHILIP MORRIS, INCORPORATED; RJ
REYNOLDS TOBACCO COMPANY; GALLINS
VENDING COMPANY; BROWN &
WILLIAMSON TOBACCO CORPORATION,
Plaintiffs-Appellants,
v.
THE UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; CAROL M.
BROWNER, Administrator,No. 98-2473
Environmental Protection Agency,
Defendants-Appellees,
PUBLIC CITIZEN; AMERICAN HEART
ASSOCIATION; AMERICAN CANCER
SOCIETY; AMERICAN COLLEGE OF CHEST
PHYSICIANS; AMERICAN COLLEGE
PREVENTIVE MEDICINE; NATIONAL
CENTER FOR TOBACCO-FREE KIDS;
WASHINGTON LEGAL FOUNDATION,
Amici Curiae,
and
AMERICAN PUBLIC HEALTH ASSOCIATION;
AMERICAN LUNG ASSOCIATION,
Movants.
------------------------------------------------*
2
Appeals from the United States District Court for the Middle District of North Carolina, at Winston-Salem. William L. Osteen, District Judge. (CA-93-370-6)
Argued: June 7, 1999
Decided: December 11, 2002
Before WIDENER and MOTZ, Circuit Judges, and Malcolm J. HOWARD, United States District Judge for the Eastern District of North Carolina, sitting by designation.
____________________________________________________________
Vacated and remanded by published opinion. Judge Widener wrote
the opinion, in which Judge Motz and Judge Howard concurred.
____________________________________________________________
COUNSEL
ARGUED: David Carlisle Shilton, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellants. Murray
Richard Garnick, ARNOLD & PORTER, Washington, D.C., for
Appellees. ON BRIEF: Lois J. Schiffer, Assistant Attorney General,
Environment & Natural Resources Division, Alice L. Mattice, Greer
S. Goldman, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; John W. Stone, Jr., Assistant United States Attor-
ney, Greensboro, North Carolina; Gregory B. Foote, Steven Silver-
man, ENVIRONMENTAL PROTECTION AGENCY, Washington,
D.C., for Appellants. Thomas Davis Sydnor, II, ARNOLD & POR-
TER, Washington, D.C.; Douglas W. Davis, HUNTON & WIL-
LIAMS, Richmond, Virginia, for Appellees. Colette G. Matzzie,
David C. Vladeck, Alan B. Morrison, PUBLIC CITIZEN LITIGA-
TION GROUP, Washington, D.C., for Amici Curiae Public Citizen,
et al. Daniel J. Popeo, Richard A. Samp, WASHINGTON LEGAL
FOUNDATION, Washington, D.C., for Amicus Curiae Foundation.
____________________________________________________________
3
OPINION
WIDENER, Circuit Judge:
This case involves a challenge to the Environmental Protection
Agency's (EPA) 1993 Report that classified environmental tobacco
smoke1 as a known human carcinogen. On appeal, EPA presents five
arguments challenging the district court's decision that EPA violated
its statutory obligations under the Radon Gas and Indoor Air Quality
Research Act (Radon Act), Pub. L. No. 99-499, §§ 401-405, 100 Stat.
1758 (reprinted in 42 U.S.C. § 7401 note).2 First, EPA argues that the
district court incorrectly held that the Report was reviewable final
agency action under the Administrative Procedure Act (APA), 5
U.S.C. §§ 702, 704. Second, EPA contends the district court errone-
ously concluded that plaintiffs-Flue-Cured Tobacco Cooperative
Stabilization Corporation, Council for Burley Tobacco, Universal
Leaf Tobacco Company, Phillip Morris Incorporated, R.J. Reynolds
Tobacco Company, and Gallins Vending Company (collectively
plaintiffs)-had proper standing to challenge EPA's Report. Third,
EPA contends that it complied with section 403(c) of the Radon Act
which required, among other things, that EPA appoint an industry
representative to serve on an advisory group during EPA's research
program regarding secondhand smoke. Fourth, EPA argues that even
if it violated the Radon Act's mandate to establish properly an advi-
sory committee for consultation, that error was nonetheless harmless
and not grounds for vacating EPA's Report. Finally, EPA contends
that the district court improperly exceeded the scope of judicial
review of agency action by engaging in an intrusive review of the sci-
entific and methodological judgments underlying EPA's conclusions
in the Report.
Because the Report is not reviewable agency action under the
APA, we vacate the judgment of the district court and remand for dis-
missal.3
____________________________________________________________
1 Such smoke is also known as secondhand, passive, secondary, or
sidestream smoke.
2 The Radon Act has not been codified.
3 In their cross-appeal (Br. p.60), the plaintiffs ask that if we vacate the
judgment of the district court, we send the case back for a new trial on
4
I.
Congress enacted the Radon Act in 1986 as part of Title IV of the
Superfund Amendments and Reauthorization Act of 1986. The Radon
Act was based on Congress's finding that "exposure to naturally
occurring radon and indoor air pollutants poses public health risk[s]"
and that "[f]ederal radon and indoor air pollutant research programs
are fragmented and underfunded," and thus a need existed for the
development of an "information base concerning exposure to radon
and indoor air pollutants." § 402, 100 Stat. at 1758.
The Radon Act required EPA's Administrator to establish a
research program designed to collect data on indoor air quality, coor-
dinate public and private research and development efforts, and to
evaluate potential government actions to reduce health risks associ-
ated with indoor air quality problems. § 403(a), 100 Stat. at 1758-59.4
____________________________________________________________
the ground that the EPA violated § 404 of the Radon Act because the
Report at issue here is "for the purpose of compelling regulation." Along
the same line, the plaintiffs ask that we send the case back for a new trial
under their claim that the Report is de facto regulation.
Each of these claimed positions is without merit. Our opinion in this
case makes it clear that Congress, in § 404 of the Radon Act, forbade
regulatory action to the EPA, as we have set forth in some detail in the
body of this opinion. The same reasoning applies to the plaintiffs' claim
of de facto regulation. Giving effect to some kind of de facto regulation
not authorized by statute would upset the entire regulatory scheme, as we
have also set forth in the body of the opinion.
So far as the district court held that the action of the EPA was regula-
tory action, we vacate its decision.
4 The Act provides:
(a) Design of Program.-[The EPA] shall establish a research
program with respect to radon gas and indoor air quality. Such
program shall be designed to-
(1) gather data and information on all aspects of indoor air
quality in order to contribute to the understanding of health
problems associated with the existence of air pollutants in
the indoor environment;
(2) coordinate Federal, State, local, and private research
and development efforts relating to the improvement of
indoor air quality; and
5
The statute required several elements of the research program that
included: research and development concerning the identification,
characterization, and monitoring of indoor air pollution; research
relating to indoor air pollution's effects on human health; and public
dissemination of the findings of the research program. § 403(b), 100
Stat. at 1759.5 The Radon Act also required EPA to establish two
advisory committees to assist EPA in conducting the statutory
research program. For one committee, Congress directed EPA to
establish an advisory committee containing representatives of federal
agencies concerned with various aspects of indoor air quality.
§ 403(c), 100 Stat. at 1759. The second advisory committee was to
contain "individuals representing the States, the scientific community,
industry, and public interest organizations." § 403(c), 100 Stat. at
1759. Congress, however, explicitly forbade to EPA any regulatory
authority under the Act and limited EPA's authority to research,
development, and related reporting, and coordination activities. § 404,
100 Stat. at 1760 (stating "[n]othing [in the Act] shall be construed
to authorize the [EPA] to carry out any regulatory program or any
activity other than research, development, and related reporting, infor-
____________________________________________________________
(3) assess appropriate Federal Government actions to miti-
gate the environmental and health risks associated with
indoor air quality problems.
§ 403(a), 100 Stat. at 1759.
5 The Act provides:
(b) Program requirements.-The research program required
under this section shall include-
(1) research and development concerning the identifica-
tion, characterization, and monitoring of the sources and
levels of indoor air pollution . . .
(2) research relating to the effects of indoor air pollution
and radon on human health;
. . .
(6) the dissemination of information to assure the public
availability of the findings of the activities under this sec-
tion.
§ 403(b), 100 Stat. at 1759.
6
mation dissemination, and coordination activities specified" in the
Radon Act) (italics added).
On January 7, 1993, pursuant to its statutory authority under the
Radon Act, EPA formally issued a report entitled Respiratory Health
Effects of Passive Smoking: Lung Cancer and Other Disorders, (the
Report) that analyzed the effects of secondhand smoke on human
health. EPA described its Report as the most recent scientific assess-
ment of the health risks of secondhand smoke and that it "provide[d]
important new documentation of the emerging scientific consensus
that tobacco smoke is not just a health risk for smokers." According
to EPA, the Report conclusively demonstrated that such smoke
increased the risk of lung cancer in healthy nonsmokers. The Report
stated that it is annually responsible for approximately 3,000 non-
smoker, lung cancer deaths in the United States and categorized sec-
ondhand smoke as a Group A (known human) carcinogen.
II.
On June 22, 1993, plaintiffs filed a four-count complaint challeng-
ing the legality of the Report and classification of secondhand smoke
as a known human carcinogen. In Count I, plaintiffs alleged that the
Report constituted regulatory action in violation of section 404 under
the Radon Act and that EPA failed to establish properly an advisory
committee pursuant to section 403(c). Count II alleged that EPA's
decision to classify secondhand smoke as a human carcinogen was
arbitrary and capricious. Count III charged that EPA violated the
APA by failing to comply with EPA's internal Risk Assessment
Guidelines. Finally, Count IV alleged that the Report violated the Due
Process Clause of the United States Constitution by contravening the
Radon Act and disregarding EPA's Risk Assessment Guidelines.
Plaintiffs sought a declaratory judgment that the Report and the clas-
sification of ETS as a known human carcinogen were unlawful and
an injunction ordering EPA to vacate the Report.
EPA initially filed a Motion to Dismiss under Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure contending that the
district court lacked jurisdiction to hear the complaint because the
Report was not reviewable final agency action under the APA. On
July 20, 1994, the district court denied EPA's motion holding that
7
although the Report was informational and imposed no direct legal
obligations or sanctions, it nonetheless was final agency action
because it was definitive, had immediate practical effects, and imme-
diate judicial review would foster agency and judicial efficiency. See
Flue-Cured Tobacco Coop. Stabilization Corp. v. United States EPA,
857 F. Supp. 1137, 1140-45 (M.D.N.C. 1994).
EPA then filed a Motion for Judgment on the Pleadings arguing
that plaintiffs lacked proper standing to challenge the Report. On May
23, 1995, the district court denied this motion ruling that EPA's
Report caused economic and reputation damage to plaintiffs and that
a decision to vacate the Report would redress plaintiffs' injuries by
reducing the public stigma attached to plaintiffs' products, rejuvenat-
ing product sales, and discouraging future public and private smoking
restrictions based upon the Report.
Thereafter, both parties filed cross-motions for summary judgment.
Plaintiffs argued that the evidence established that EPA had violated
sections 403(c) and 404 of the Radon Act and that the Report was
arbitrary and capricious. EPA countered that its Report and research
procedures complied with the Radon Act and that the Report was the
product of reasoned decisionmaking.
On July 17, 1998, the district court granted partial summary judg-
ment to the plaintiffs on Counts I, II, and III. See Flue-Cured
Tobacco Coop. Stabilization Corp. v. United States EPA, 4 F. Supp.
2d 435 (M.D.N.C. 1998). While rejecting plaintiffs' argument that the
Report constituted unauthorized regulation under section 404, the
court held that EPA violated section 403(c) by excluding a tobacco-
industry representative from the second advisory committee. See
Flue-Cured Tobacco, 4 F. Supp. 2d at 441-49. Addressing the proper
remedy, the court considered whether inclusion of a tobacco-industry
representative on the advisory group would likely have produced a
different result. See Flue-Cured Tobacco, 4 F. Supp. 2d at 447-49.
The court concluded that "[h]ad EPA reconciled industry objections
voiced from a representative body during the research process, the
ETS Risk Assessment [Report] would very possibly not have been
conducted in the same manner nor reached the same conclusions."
Flue-Cured Tobacco, 4 F. Supp. 2d at 466. The court accordingly
8
issued an order vacating "Chapters 1 thru 6 of and the Appendices"
to the Report. Flue-Cured Tobacco, 4 F. Supp. 2d at 466.
The parties filed cross-appeals challenging the district court's deci-
sion.
III.
Because questions of subject matter jurisdiction concern a court's
power to reach the substantive issues of a case, Owens-Illinois, Inc.
v. Meade, 186 F.3d 435, 442 n.4 (4th Cir. 1999), we first address
EPA's contention that the district court lacked subject matter jurisdic-
tion. EPA maintains that subject matter jurisdiction was lacking
because the Report did not constitute reviewable final agency action
under the APA, or in the alternative, because plaintiffs lacked stand-
ing to challenge the Report. Because we conclude that the Report was
not final agency action, and therefore, that the district court lacked
subject matter jurisdiction to hear plaintiffs' claims, Veldhoen v.
United States Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994), we do
not reach the standing issue.6Ashwander v. Tennessee Valley Author-
ity, 297 U.S. 288, 347 (Brandeis, J., concurring) ("It is not the habit
of the Court to decide questions of a constitutional nature unless abso-
lutely necessary to a decision of the case.").
5 U.S.C. § 702 of the APA provides that "[a] person suffering legal
wrong because of agency action, or adversely affected or aggrieved
by agency action within the meaning of a relevant statute, is entitled
to judicial review thereof." Other than agency action made specifi-
cally reviewable by statute, § 704 limits the APA's non-statutory right
of judicial review to final agency action. 5 U.S.C. § 704 ("Agency
action made reviewable by statute and final agency action for which
there is no other adequate remedy in a court are subject to judicial
review."). As the Radon Act does not create a specific private right
of action, plaintiffs rest their claims for relief on the APA's general
review provisions, 5 U.S.C. §§ 702, 704. See Lujan v. National Wild-
life Federation, 497 U.S. 871, 882 (1990). To determine whether the
Report is subject to judicial review under the APA, the court must
____________________________________________________________
6 Standing is a Constitutional question. Vermont Agency of Natural
Resources v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000).
9
decide whether the Report qualifies as final agency action under the
APA.
In Federal Trade Comm'n v. Standard Oil Co., 449 U.S. 232, 239-
40 (1980), the Supreme Court articulated several factors for determin-
ing when agency action is "final" for the purposes of judicial review
under the APA: (1) is the agency action a definitive statement of the
agency's position; (2) does the action have direct and immediate legal
force requiring parties' immediate compliance with the agency's pro-
nouncement; (3) do the challenges to the agency's actions involve
legal issues fit for judicial resolution; and (4) would immediate judi-
cial review speed enforcement and promote judicial efficiency? The
Court refined its Standard Oil Co. finality analysis in Bennett v.
Spear, 520 U.S. 154 (1997), by narrowing the inquiry to two issues:
First, the action must mark the "consummation" of the agen-
cy's decisionmaking process-it must not be of a merely
tentative or interlocutory nature. And second, the action
must be one by which "rights or obligations have been
determined," or from which "legal consequences will flow."
Bennett, 520 U.S. at 177-78 (internal citations omitted); see also
COMSAT Corp. v. National Sci. Found., 190 F.3d 269, 274 (4th Cir.
1999) ("[A]n agency action may be considered`final' only when the
action signals the consummation of an agency's decisionmaking pro-
cess and gives rise to legal rights or consequences.") (italics in origi-
nal). The parties do not dispute that the Report marks the
consummation of the agency's decisionmaking process. Thus, the
critical issue is whether the Report gives rise to legal consequences,
rights, or obligations.
As acknowledged by the district court, the Report creates no "legal
rights or obligations" and has no direct regulatory effect on plaintiffs.
Flue-Cured Tobacco, 857 F. Supp. at 1142 n.5 & 1144. Section 404
of the Radon Act explicitly prohibits the Report from having any reg-
ulatory effect. § 404, 100 Stat. 1760. Despite expressing concern
about the Report's inability to create legal rights or obligations, the
district court concluded that the judiciary's increased sensitivity "to
review administrative actions even when they do not create direct
obligations or have enforcement effect" supported extending judicial
10
review to agency actions carrying only indirect consequences. Flue-
Cured Tobacco, 857 F. Supp. at 1142-43. It described as "problem-
atic" the statutory prohibition on creation of "any legal rights or obli-
gations," 857 F. Supp. at 1144.
In evaluating the Report's practical and persuasive consequences,
the district court pointed to regulations issued by the General Service
Administration (GSA) which relied, in part, on the Report to justify
its ban of the use of tobacco products in GSA motor vehicles. Flue-
Cured Tobacco, 857 F. Supp. at 1142 (citing 58 Fed. Reg. 63,531
(1993)). The district court noted that "given the emotionally charged
nature of the debate over smoking and the general public's tendency
to panic at the slightest association of any product with cancer . . .
identifying ETS as a carcinogen unquestionably will have far-
reaching consequences." Flue-Cured Tobacco, 857 F. Supp. at 1143.
The district court concluded that the Report carried indirect regulatory
effects sufficient to convert the Report into reviewable final agency
action under the APA. Flue-Cured Tobacco, 857 F. Supp. at 1142.
In evaluating whether the Report is reviewable agency action, we
first look for direction to the Radon Act. As noted above, section 404
of the Radon Act prohibits the EPA (and the courts) from giving the
Report "any regulatory" effect. § 404, 100 Stat. at 1760. Congress
stated that the Radon Act "shall not be construed to authorize the
[EPA] to carry out any regulatory program or any activity other than
research, development, and related reporting, information dissemina-
tion, and coordination activities." (italics added) § 404, 100 Stat. at
1760. Congress has spoken on the EPA's ability under the statute to
create legal rights, obligations, or consequences. As a court charged
with interpreting Congress's intent, we are not at liberty to ignore
Congress's directive that the Report is not regulatory and Congress's
labeling of the Report as a research publication.
In this respect, there is no sufficient reason to give the word "any"
a meaning other than its ordinary English usage. That meaning is: "to
any extent: in any degree: at all." Webster's Third New Int'l Dictio-
nary, 97 (1971). This meaning has been adopted by the courts. In
United States v. Monsanto, 491 U.S. 600, 607 (1989), a drug forfei-
ture statute, 21 U.S.C. § 853(a), required that upon conviction a per-
son "shall forfeit . . . any property" that was derived from the
11
commission of the offense. The Court construed the word "any":
"Congress could not have chosen stronger words to express its intent
that forfeiture be mandatory in cases where the statute applied, or
broader words to define the scope of what was to be forfeited." 491
U.S. at 607. In Suggs v. Pan Am. Life Ins. Co., 847 F. Supp. 1324,
1345 (S.D. Miss. 1994), "any" was construed: "It should be pointed
out that the words `nothing,' `any,' `alter,' `exempt,' and `relieve'
used in . . . [Titles 29 and 15] are all comprehensive terms. They do
not require extraneous support for their breadth. More comprehensive
terms cannot be found in the English language than the words `noth-
ing,' `any,' and `every.'" Of like effect is First Nationwide Bank v.
United States, 48 Fed. Cl. 248, 261 (2000): "There are perhaps few
words in the English language as unambiguous as the word `any.' It
is not `susceptible of two different and reasonable interpretations'."
Having concluded that the Report carries no legally binding author-
ity, we must decide whether agency action producing only coercive
pressures on third parties is reviewable under the APA. We believe
that the Supreme Court has spoken on this issue: Agency action
which carries no "direct and appreciable legal consequences" is not
reviewable under the APA. See Bennett, 520 U.S. at 178 (discussing
Dalton v. Specter, 511 U.S. 462 (1994); and Franklin v. Massachu-
setts, 505 U.S. 788 (1992)).
In Franklin v. Massachusetts, 505 U.S. 788, 790 (1992), Massa-
chusetts challenged the method for counting overseas federal employ-
ees for the 1990 census after losing a seat in the United States House
of Representatives. The automatic reapportionment statute required
the Secretary of Commerce to submit a "tabulation of total population
by States" to the President after conducting the census. Franklin, 505
U.S. at 792 (quoting 13 U.S.C. § 141(b)). The President then submit-
ted to Congress a statement of the number of representatives appor-
tioned to each State. Franklin, 505 U.S. at 792 (citing 2 U.S.C.
§ 2a(a), (b)). As part of its challenge, Massachusetts sought review of
the Secretary of Commerce's report. The Secretary's report, similar
to the EPA report in the case at hand, carried "no direct consequences
for the reapportionment" but served "more like a tentative recommen-
dation than a final and binding determination." Franklin, 505 U.S. at
798. Because the Secretary's report independently could not alter the
States' entitlement to representatives' seats and the President was not
12
bound by the Report, the Supreme Court determined that the Secre-
tary's report was not reviewable final agency action. Franklin, 505
U.S. at 796-98.
In Dalton v. Specter, 511 U.S. 462, 466 (1994), plaintiffs chal-
lenged the closure of a naval shipyard seeking to obtain judicial
review of base closure recommendations made by the Secretary of
Defense and Defense Base Closure and Realignment Commission.
The plaintiffs in Dalton, like the plaintiffs in this case, alleged that the
Secretary and Commission failed to follow procedural mandates of
the Defense Base Closure and Realignment Act of 1990, Pub. L. 101-
510, 104 Stat. 1808, in issuing their recommendations. 511 U.S. at
469. The Supreme Court concluded that the reports carried "`no direct
consequences' for base closings" because the President was free to
"approve or disapprove the Commission's report" and held that the
recommendations were not reviewable final agency action. Dalton,
511 U.S. at 469-70 (quoting Franklin, 505 U.S. at 798).
Both Franklin and Dalton involved agency recommendations
which carried persuasive value with the President who was the final
decisionmaker. However, the persuasive value and practical barriers
associated with the agencies' recommendations were insufficient to
create reviewable agency action under the APA because the chal-
lenged agency actions, although they might have influenced the Presi-
dent's decision, did not create any legal rights, obligations, or
consequences. Instead, it was the actions of the President which had
a direct legal effect on the parties.7 Dalton, 511 U.S. at 469; Franklin,
505 U.S. at 797.
Plaintiffs argue that a pragmatic approach recognizing the Report's
powerful influence on other agencies and third parties is appropriate.
However, in Dalton, the statute required the President to either accept
or reject the Commissioner's recommendation in its entirety. Dalton,
511 U.S. at 470. The Supreme Court characterized this distinction as
immaterial. Dalton, 511 U.S. at 470. Regardless of how the chal-
lenged reports by the Commission and Secretary affected the Presi-
dent's range of choices, the final decision which produced the actions
____________________________________________________________
7 The President's actions were not reviewable because the President is
not an agency. Franklin, 505 U.S. at 800-01.
13
directly affecting the parties remained the President's. Dalton, 511
U.S. at 470. Thus, even when agency action significantly impacts the
choices available to the final decisionmaker, this distinction does not
transform the challenged action into reviewable agency action under
the APA.
Like the harms at issue in Dalton and Franklin, the consequences
complained of by plaintiffs stem from independent actions taken by
third parties. Even if other agencies have relied on the Report in
imposing tobacco related restrictions, these regulations are not direct
consequences of the Report, but are the product of independent
agency decisionmaking. Like the President in Franklin and Dalton,
GSA and other federal agencies are free to embrace or disregard the
Report which is advisory and does not trigger the mandatory creation
of legal rules, rights, or responsibilities. Cf. Natural Resources
Defense Council v. United States EPA, 16 F.3d 1395, 1407 (4th Cir.
1993).8
Likewise, while the Report's persuasive value may lead private
groups to impose tobacco-related restrictions, these decisions are
attributable to independent responses and choices of third parties. See
Industrial Safety Equipment Ass'n v. Environmental Protection
Agency, 837 F.2d 1115, 1121 (D.C. Cir. 1988) (concluding that indi-
rect effect from "reactions and choices of industry customers and
workers" insufficient to establish final agency action). The actions
and consequences complained of by plaintiffs do not legally flow
from the Report nor are they the result of legal rights or consequences
created by the Report. See Bennett, 520 U.S. at 178.
Furthermore, as a practical matter and of considerable importance,
if we were to adopt the position that agency actions producing only
pressures on third parties were reviewable under the APA, then
almost any agency policy or publication issued by the government
____________________________________________________________
8 Plaintiffs have chosen not to challenge GSA's reliance on the EPA
Report in enacting regulations which ban the use of tobacco products in
all GSA motor vehicles. See 41 C.F.R. § 101.39.300(d) (2001); 58 Fed.
Reg. 63531, 63532 (1993). While the government cannot create jurisdic-
tion, it advises in its brief that such a course might have been unobjec-
tionable. (Br. p.17)
14
would be subject to judicial review. We do not think that Congress
intended to create private rights of actions to challenge the inevitable
objectionable impressions created whenever controversial research by
a federal agency is published. Such policy statements are properly
challenged through the political process and not the courts.
Plaintiffs argue that Bennett v. Spear, 520 U.S. 154 (1997), sup-
ports their argument that the Report's coercive power transforms the
Report into reviewable final agency actions. To the contrary, we are
of opinion that Bennett supports the government's position. In Ben-
nett, plaintiffs challenged a biological opinion issued by the Fish and
Wildlife Services to the Bureau of Reclamation regarding the use of
reservoir water to protect the habitat of endangered species. Bennett,
520 U.S. at 157-59. The Supreme Court found that the biological
opinion constituted reviewable final agency action under the APA
because it "alter[ed] the legal regime to which the action agency [was]
subject, authorizing it to take the endangered species if (but only if)
it complie[d] with the prescribed conditions." Bennett, 520 U.S. at
170, 178. "Unlike the reports in Franklin and Dalton which were
purely advisory and in no way affected the legal rights of the relevant
actors, the Biological Opinion at issue . . . [had] direct and apprecia-
ble legal consequences." 520 U.S. at 178. It and an Incidental Take
Statement "alter[ed] the legal regime to which the action agency is
subject, authorizing it to take the endangered species if (but only if)
it complies with the prescribed conditions." Bennett, 520 U.S. at 178.
The Supreme Court had stressed that failing to follow the biological
opinion would have exposed the Bureau to "substantial civil and
criminal penalties, including imprisonment." Bennett, 520 U.S. at
170.
The Report, unlike the biological opinion in Bennett, does not act
as a permit or carry any comparable legal consequences. While plain-
tiffs may fear that the Report will increase their vulnerability to liabil-
ity, no statutory scheme triggers potential civil or criminal penalties
for failing to adhere to the Report's recommendations.
In summary, for the principal reasons that the statute forbids that
the EPA carry out any regulatory program or any activity other than
research, development and related reporting, information dissemina-
tion, and coordination activities specified in the Title; that there are
15
no legal and direct consequences of the report which constitute final
agency action; and that holding the report is subject to review under
the APA would expose to immediate court review the various results
of controversial governmental research as soon as published but
before they are given regulatory effect, we are of opinion and hold
that there has not been final agency action under 5 U.S.C. §§ 702 and
704. The decision of the district court is remanded for dismissal on
account of want of subject matter jurisdiction. As noted, the cross-
appeal of the plaintiffs is denied. We do not decide the other ques-
tions raised in this case.
IV.
Every State in this circuit produces tobacco. The economy of Vir-
ginia has been dependent upon the tobacco industry, to a great extent,
for almost 400 years and in the other States of the circuit almost that
long and as much, or more. In context, that is about the same period
of time that the Plantagenets and Tudors ruled England. North Caro-
lina is the nation's largest producer, and North Carolina, Virginia and
South Carolina together produce more than half the nation's tobacco
crop. So the importance of the decision of the EPA at issue here may
not be over-emphasized. Nevertheless, exclusion by the EPA of any
meaningful tobacco industry representative from the advisory com-
mittee mentioned in the Radon Statute is unexplained. But these facts
do not affect our lack of jurisdiction under the APA to review the
report at issue in this case. The legal questions in the case are substan-
tial. The practical consequences of the EPA Report are great and
affect the livelihood of thousands.
On that account, we stay the issuance of the mandate upon our
decision for a period of 30 days after it has become final in order that
the plaintiffs may file a petition for certiorari in the Supreme Court
of the United States and seek a stay from that Court in connection
with such filing. See Reamer v. Beall, 506 F.2d 1345, 1346 (4th Cir.
1974); Rich v. Naviera Vacuba, S.A., 295 F.2d 24, 26 (4th Cir. 1961).
V.
The judgment of the district court is accordingly vacated and the
case remanded for dismissal for want of subject matter jurisdiction.
VACATED AND REMANDED WITH INSTRUCTIONS
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