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,

Environmental Protection Agency,  No. 98-2473

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 FLUE-CURED TOBACCO COOPERATIVE v. EPA
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 DEPARTMENT 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 Attorney, Greensboro, North Carolina; Gregory B. Foote, Steven Silverman, ENVIRONMENTAL PROTECTION AGENCY, Washington,

D.C., for Appellants. Thomas Davis Sydnor, II, ARNOLD & PORTER, Washington, D.C.; Douglas W. Davis, HUNTON & WILLIAMS, Richmond, Virginia, for Appellees. Colette G. Matzzie,

David C. Vladeck, Alan B. Morrison, PUBLIC CITIZEN LITIGATION 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.

FLUE-CURED TOBACCO COOPERATIVE v. EPA 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 erroneously 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 advisory 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 scientific 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 dismissal.3

1Such smoke is also known as secondhand, passive, secondary, or

sidestream smoke. 

2The 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 FLUE-CURED TOBACCO COOPERATIVE v. EPA
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, coordinate public and private research and development efforts, and to

evaluate potential government actions to reduce health risks associated 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 regulatory action, we vacate its decision. 

4The 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 

FLUE-CURED TOBACCO COOPERATIVE v. EPA 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 mitigate the environmental and health risks associated with

indoor air quality problems. 

§ 403(a), 100 Stat. at 1759. 

5The Act provides: 

(b) Program requirements.—The research program required

under this section shall include— 

(1) research and development concerning the identification, 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 section. 

§ 403(b), 100 Stat. at 1759. 

6 FLUE-CURED TOBACCO COOPERATIVE v. EPA
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 assessment 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 nonsmoker, lung cancer deaths in the United States and categorized secondhand smoke as a Group A (known human) carcinogen. 

II.

On June 22, 1993, plaintiffs filed a four-count complaint challenging 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 classification 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

FLUE-CURED TOBACCO COOPERATIVE v. EPA 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 immediate 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, rejuvenating 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 judgment 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 tobaccoindustry 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 FLUE-CURED TOBACCO COOPERATIVE v. EPA
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 decision. 

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 jurisdiction. 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 standing 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.6 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (Brandeis, J., concurring) ("It is not the habit

of the Court to decide questions of a constitutional nature unless absolutely 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 specifically 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 Wildlife Federation, 497 U.S. 871, 882 (1990). To determine whether the

Report is subject to judicial review under the APA, the court must

6Standing is a Constitutional question. Vermont Agency of Natural

Resources v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000). 

FLUE-CURED TOBACCO COOPERATIVE v. EPA 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 determining 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 pronouncement; (3) do the challenges to the agency’s actions involve

legal issues fit for judicial resolution; and (4) would immediate judicial 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 agency’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 process and gives rise to legal rights or consequences.") (italics in original). 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 regulatory 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 FLUE-CURED TOBACCO COOPERATIVE v. EPA
review to agency actions carrying only indirect consequences. FlueCured Tobacco, 857 F. Supp. at 1142-43. It described as "problematic" the statutory prohibition on creation of "any legal rights or obligations," 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. FlueCured 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 farreaching 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 dissemination, 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 Dictionary, 97 (1971). This meaning has been adopted by the courts. In

United States v. Monsanto, 491 U.S. 600, 607 (1989), a drug forfeiture statute, 21 U.S.C. § 853(a), required that upon conviction a person "shall forfeit . . . any property" that was derived from the

FLUE-CURED TOBACCO COOPERATIVE v. EPA 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 ‘nothing,’ ‘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 authority, 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. Massachusetts, 505 U.S. 788 (1992)).

In Franklin v. Massachusetts, 505 U.S. 788, 790 (1992), Massachusetts challenged the method for counting overseas federal employees 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 submitted to Congress a statement of the number of representatives apportioned 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 recommendation 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 FLUE-CURED TOBACCO COOPERATIVE v. EPA
bound by the Report, the Supreme Court determined that the Secretary’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 challenged 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 challenged agency actions, although they might have influenced the President’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 challenged reports by the Commission and Secretary affected the President’s range of choices, the final decision which produced the actions

7The President’s actions were not reviewable because the President is

not an agency. Franklin, 505 U.S. at 800-01. 

FLUE-CURED TOBACCO COOPERATIVE v. EPA 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 indirect 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

8Plaintiffs 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 jurisdiction, it advises in its brief that such a course might have been unobjectionable. (Br. p.17) 

14 FLUE-CURED TOBACCO COOPERATIVE v. EPA
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), supports 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 Bennett, 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 appreciable 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 plaintiffs may fear that the Report will increase their vulnerability to liability, 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 dissemination, and coordination activities specified in the Title; that there are

FLUE-CURED TOBACCO COOPERATIVE v. EPA 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 crossappeal of the plaintiffs is denied. We do not decide the other questions raised in this case. 

IV.

Every State in this circuit produces tobacco. The economy of Virginia 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 Carolina 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 committee 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 substantial. 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

16 FLUE-CURED TOBACCO COOPERATIVE v. EPA