Environmental Def. F., Inc. v. Environmental Pro. Agcy.
| Decision Date | 13 December 1973 |
| Docket Number | No. 72-1548,72-1690,72-2142,73-1088,72-2183,73-2070.,73-1015,72-1548 |
| Citation | 489 F.2d 1247 |
| Parties | ENVIRONMENTAL DEFENSE FUND, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY and William D. Ruckelshaus, Administrator, Respondents, Coahoma Chemical Company, Inc., Intervenors. ENVIRONMENTAL DEFENSE FUND, INC., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY and William D. Ruckelshaus, Administrator, Respondents. COAHOMA CHEMICAL COMPANY et al., Petitioners, v. William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent, EDF et al., Intervenors. OLIN CORPORATION, Petitioner, v. William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent. CAROLINA CHEMICALS, INC., et al., Petitioners, v. William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent. W. R. GRACE & CO. et al., Petitioners, v. William D. RUCKELSHAUS, Environmental Protection Agency, Respondent. OCTAGON PROCESS, INC., Petitioner, v. William D. RUCKELSHAUS, Administrator of the Environmental Protection Agency, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
John F. Dienelt, Washington, D. C., with whom William A. Butler, East Setauket, N. Y., was on the brief for petitioners in Nos. 72-1548 and 72-1690 and Environmental Defense Fund, Inc., and others, petitioners in No. 72-2142.
Robert L. Ackerly with whom Charles A. O'Connor, III, Washington, D. C., was on the brief for petitioners in Nos. 72-2142, 72-2183, 73-1015 and 73-2070.
Stephen F. Eilperin, Atty., Dept. of Justice with whom Walter H. Fleischer, Atty., Dept. of Justice and Blaine Fielding, Atty., Environmental Protection Agency, were on the brief for respondents. Alan S. Rosenthal, Atty., Dept. of Justice and Michael C. Farrar, Atty., Environmental Protection Agency also entered appearances for respondents.
Charles M. Crump, Memphis, Tenn., and Walkins C. Johnston, Montgomery, Ala., were on the brief for intervenors.
Before TAMM, ROBINSON and WILKEY, Circuit Judges.
Coahoma Chemical Company, the Environmental Defense Fund, and other parties seek review of the 14 June 1972 Order of the Administrator of the Environmental Protection Agency (EPA) which cancelled, effective 31 December 1972, almost all registrations for the use of DDT, except for limited public health and agricultural pest quarantine purposes.1 Coahoma, along with other producers and users, challenges the Order as going too far in banning most uses of DDT; the Environmental Defense Fund (EDF) challenges the Order as not going far enough by allowing a few uses to remain.
After a lengthy administrative review of DDT, a potent pesticide,2 the Order of 14 June 1972 was promulgated. The EDF first sought cancellation of DDT registrations under the Federal Insecticide, Fungicide, and Rodenticide Act FIFRA in October 1969.3 More than a year later, and after two cases challenging the lack of Government action had been brought in and decided by this court,4 on 15 January 19715 the Administrator of EPA issued cancellation notices for all registrations of insecticides containing DDT. However, no suspension of use was required at this time.
EPA began evidentiary hearings on DDT in August 1971. A month later an Advisory Committee, appointed at the request of the registrants (i. e., users and producers) of DDT,6 issued a report confirming the hazards caused by DDT and recommending suspension or rapid decrease in use. In one of several preliminary judicial skirmishes between the parties, this court ordered EPA to reconsider its decision not to suspend use of DDT pending the outcome of the cancellation proceedings;7 reconsideration resulted in no change by EPA. We later in effect gave EPA a 15 April 1972 deadline before which to conduct meaningful administrative proceedings.8
The EPA hearings terminated in March 1972, after seven months of testimony from a broad spectrum of the public, and in April the Hearing Examiner9 filed his Recommended Findings, Conclusions, and Orders.10 The Hearing Examiner concluded that all cancellation notices should be withdrawn, and registrations of DDT should continue, except for non-military mothproofing and DDD fruit spray.11
The Administrator chose to review the case personally (instead of delegating this as he normally would to the Judicial Officer),12 and after oral argument and written briefs concluded on 14 June 1972 that DDT was sufficiently dangerous to require its use to be banned for most purposes. The Administrator delayed the effective date of his Order for six months, so that users of DDT could be educated in the proper use of alternative pesticides.13
The statutory basis for the EPA action lies in the Federal Insecticide, Fungicide, and Rodenticide Act, FIFRA. This Act requires registration of every economic poison distributed or sold in the United States.14 Registration is to be denied if the substance does not comply with the provisions of the Act,15 and misbranding of the substance is a prohibited action.16 Misbranding is defined in the statute to have occurred, "if in the case of an insecticide . . . when used as directed or in accordance with commonly recognized practice it shall be injurious to living man or other vertebrate animals, or vegetation, except weeds, to which it is applied, or to the person applying such economic poison.17 A later formulation of this requirement was incorporated in the Federal Environmental Pesticide Control Act of 1972, which requires denial of registration unless the substance "will perform its intended function without unreasonable adverse effects on the environment,"18 and unless "when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment."19 The FIFRA provisions further require that the order of the Administrator cancelling registrations must be based on substantial evidence of record developed at a hearing, if a public hearing is held, and the order must set forth detailed findings of fact.20
The Administrator's Order is challenged on two grounds: (1) is it based on substantial evidence in the record; (2) does it comply with the requirements of the National Environmental Policy Act (NEPA)? For the reasons explicated in Parts II and III below, to both questions our answer is affirmative.
Explicitly established in the substantive legislation are the standards for judicial review. Once the Administrator has made a final order concerning the registration of a pesticide, that order is appealable to the United States Court of Appeals. The FIFRA statute directs the Court of Appeals to sustain the findings of the Administrator with respect to questions of fact if "supported by substantial evidence when considered on the record as a whole."21 The 1972 amendments further elaborate the scope of judicial review:
The court shall consider all evidence of record. The order of the Administrator shall be sustained if it is supported by substantial evidence when considered on the record as a whole.22
The two versions provide standards of review which are somewhat different, in that the court under the 1970 language need only support findings of fact by the Administrator if based on substantial evidence, but the 1972 language requires the court to support orders of the Administrator which are based on substantial evidence. The 1972 amendment was enacted and effective on 21 October 1972, four months after the Administrator issued his Order in question here, but well before our judicial review. While the parties seem to assume that the 1970 version is controlling for purposes of our review,23 the 1972 statute has no provision denying application to judicial review of prior orders of the Administrator. We read the 1972 amendment as establishing a standard effective for judicial review commencing after 21 October 1972, and therefore applicable in the case at bar.
In any event, the provisions for judicial review under both the 1970 and 1972 language clearly require the court to determine whether the findings of fact of the Administrator are based upon substantial evidence when considered on the record as a whole. Thus we must apply a traditional type of substantial evidence test, albeit one based on an extraordinarily voluminous record.24 "Substantial evidence" was long ago defined by Chief Justice Hughes as Consolidated Edison Co v. NLRB.25 And since the statute requires the whole record to be considered as in Universal Camera Corp. v. NLRB:
The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. . . . This does not mean that even as to matters not requiring expertise a court may displace the Board\'s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.26
The Supreme Court has more recently recognized in Consolo v. Federal Maritime Commission that there may be inconsistent conclusions which can be drawn from the same record, each of which may be supported by substantial evidence. Thus, "substantial evidence"
is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency\'s finding from being supported by substantial evidence.27
The Supreme Court went on to point out that the substantial evidence test "frees the reviewing courts of the time-consuming and difficult task of weighing the evidence, it gives proper respect to the expertise of the administrative tribunal and it helps promote the uniform application of the statute."28 Other co...
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