Checks and Balances on the Fifth Branch of Government: Colorado Environmental Coalition V. Wenker and the Justiciability of the Federal Advisory Committee Act

I. INTRODUCTION In March 2001, the Bureau of Land Management ("BLM") published a call for nominations to fill fourteen vacancies on Resource Advisory Councils ("RACs") in Colorado.1 The RACs are made up of private citizens who help the BLM develop environmental and public land use policies throughout the state. Shortly after the announcement, the BLM received nearly fifty applications for the positions, complete with the required letters of reference from the applicants' represented interests. Fifteen days after the announced deadline for nominations, Colorado Governor Bill Owens sent a letter to the Colorado Director of the BLM with a list of thirteen names the Governor wished to nominate for the RAC positions. However, the letter included no letters of reference or any other documentation supporting the nominations. When the BLM announced the appointments, all thirteen of Governor Owens' nominees and only one of the other fifty nominees had been selected. Two of the rejected applicants and two environmental groups challenged the BLM's action in federal court for, among other things, failing to ensure "that the advice and recommendations of the advisory committee . . . not be inappropriately influenced ... by any special interest."2 However, the U.S. Court of Appeals for the Tenth Circuit held that the issue was not subject to judicial review because the decision of whom to appoint to the RACs was "committed to agency discretion by law."3 This Note argues that the Tenth Circuit erred by disregarding Congress's intent with respect to agency selections of advisory committee members and that such agency decisions should be subject to judicial review. These events and the court's subsequent holding highlight one of the primary concerns of administrative law in today's regulatory state-the danger of agency capture. According to some theories, agency capture occurs when regulated industries come to dominate the government entities charged with regulating them.4 Thus, much of administrative law deals with the nature and scope of judicial review of agency actions, providing a check on federal regulatory agencies-the so-called "fourth branch" of government.5 However, regulated industries may succeed in an alternative or "backdoor" approach to agency capture through use of the numerous but relatively unknown federal advisory committees, which some have called the "fifth branch" of government.6 Advisory committees are essentially private groups that perform research and make recommendations to government agencies. Although these committees can provide important expertise, their members represent private interests and may offer biased opinions slanted in favor of the interests they represent. In 1972 Congress, concerned with the proliferation and potential misuse of advisory committees, passed the Federal Advisory Committee Act ("FACA").7 Among FACA's provisions, Congress included two key requirements for creating advisory committees: first, that "membership of the advisory committee . . . be fairly balanced in terms of the points of view represented"8 and second, that "the advice and recommendations of the advisory committee . . . not be inappropriately influenced by the appointing authority or by any special interest."9 In Colorado Environmental Coalition v. Wenker,10 the Tenth Circuit addressed whether the BLM's selection of the Governor's nominees as RAC members was subject to judicial review under these two provisions or "committed to agency discretion"11 and therefore not justiciable under the Federal Administrative Procedure Act ("APA"). Ultimately, the court decided that while the "fair balance" provision of FACA was justiciable, the "inappropriate influence" provision was not because Congress had provided "no meaningful standard against which to judge the agency's exercise of discretion."12 However, a brief review of FACA's legislative history and related cases demonstrates that Congress did provide such a standard and that the court diverged from its own precedent by not looking to the legislative history for that standard. …