Humane Soc. of U.S. v. E.P.A., 83-2336
| Decision Date | 02 May 1986 |
| Docket Number | No. 83-2336,83-2336 |
| Citation | 790 F.2d 106 |
| Parties | , 32 Ed. Law Rep. 66, 16 Envtl. L. Rep. 20,521 The HUMANE SOCIETY OF the UNITED STATES, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Lee M. Thomas, Administrator of the Environmental Protection Agency, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Theodore L. Garrett, Washington, D.C., for petitioner.
Lee R. Tyner, Atty., Dept. of Justice, and William L. Jordan, Atty., E.P.A., with whom Margaret N. Strand, Atty., Dept. of Justice, and Michael S. Winer, Atty., E.P.A., Washington, D.C., were on brief, for respondents.
Before ROBINSON, Chief Judge, and WALD and BUCKLEY, Circuit Judges.
Opinion for the Court filed by Chief Judge Spottswood W. ROBINSON, III.
The Environmental Protection Agency (EPA) awarded permits under the Federal Insecticide, Fungicide and Rodenticide Act 1 to the Fish and Wildlife Service of the Department of the Interior, and to the University of California at Davis, authorizing experimental uses of the chemical sodium fluoroacetate. Petitioner, the Humane Society of the United States, asserts that EPA exceeded its statutory authority in doing so. 2 Before addressing that claim, however, we must consider whether jurisdiction to review the challenged action lies originally in this court rather than in a district court and, if so, whether this litigation survives the expiration of the permits during November, 1984. We hold that we have jurisdiction and that the case is not moot, and we affirm the orders conferring the permits.
Prior to 1972, sodium fluoroacetate, commonly known as Compound 1080, could legally be employed to destroy animal predators. During that era, ranchers and farmers frequently resorted to this highly toxic compound to reduce the populations of coyotes and other animals preying on livestock. In 1972, however, EPA cancelled all registrations for use of Compound 1080 as a predacide, 3 finding that it also killed animals not targeted. 4 The value of Compound 1080 for coyote control was judged "speculative," 5 and available alternatives were deemed safer and more effective. 6
Nearly a decade later, the Fish and Wildlife Service, along with others, petitioned for reconsideration of the 1972 action. 7 An extensive proceeding followed, 8 and an administrative law judge, in an initial decision, 9 concluded that new evidence emerging since 1972 warranted reconsideration. 10 The judge recommended particular attention to two bait delivery mechanisms nonexistent in 1972 11--the toxic collar 12 and the single lethal dose bait 13--and dismissed applications for use of two others. 14
While some aspects of the initial decision were still pending an administrative appeal, EPA received separate applications from the Fish and Wildlife Service and the University of California at Davis for permits allowing them to perform field experiments with Compound 1080. 15 EPA published notices of the applications in the Federal Register and invited comments. 16 The notices informed readers that EPA, in evaluating these proposals, would "take into account" information collected during the proceeding devoted to reconsideration. 17 EPA received fifteen comments on the two applications, including comments by petitioner in opposition to the permits. 18
Prior to action on the applications, EPA issued a final decision on re-registration of Compound 1080. 19 The decision modified the 1972 cancellation by ordering submission of additional data on the two delivery mechanisms singled out by the administrative law judge for further examination. 20 A few weeks later, experimental use permits, each valid for one year, were issued to the Service and the University. 21
The Service's permit authorized it to conduct up to four field trials of single lethal dose baits. 22 The trials were designed to enable researchers to estimate predation rates and to evaluate the impact of Compound 1080 on untargeted animals. The University's permit authorized it to test a new bait delivery unit 23 containing substances especially attractive to coyotes and less enticing to other animals. The permit allowed the University to place up to 600 bait delivery units in three specified California counties, and sanctioned procedures to facilitate identification of animals taking the baits. 24
The Service's experiment went forward. However, because the University's project was not funded, its permit was not put to use. 25 Upon expiration of the permits in November, 1984, the Service was given a renewal permit, 26 the term of which was later extended to enable continued experimentation. 27 Petitioner has challenged the renewal permit in a separate suit. 28 The University likewise has applied for renewal of its permit, and its application apparently remains pending. 29
We first address EPA's contention that jurisdiction to examine the permit awards resides originally in a district court and not here. Direct judicial review of the agency's action in a court of appeals is precluded unless there is a "controversy as to the validity of [an] order issued by the Administrator [of EPA] following a public hearing." 30 EPA urges us to adopt a literal interpretation of the language imposing the "public hearing" requirement, 31 but we do not write on a clean slate. Following, as we must, 32 our earlier decision in Environmental Defense Fund, Inc. v. Costle, 33 we conclude that the litigation is properly before us.
In that case, a party contended that this court lacked jurisdiction of a petition for review of an EPA order denying a formal hearing on a proposal to cancel a pesticide registration, 34 arguing that the "public hearing" envisioned by the Act had never occurred. 35 We acknowledged "the lack of public notice, the absence of public participation, and the lack of any type of oral presentation by the parties." 36 However, an exhaustive exploration of the statutory text, its legislative history, the caselaw and other statutes, together with a consideration of the demands of sound judicial policy, 37 led us to conclude that "[b]ecause the record before us is wholly adequate for judicial review, ... the proceedings, antecedent to the Administrator's order were a 'public hearing' granting this court jurisdiction to review the challenged order." 38 The pivot of our decision was the disclosure in the legislative history that Congress was primarily concerned about an adequate record for review in a court of appeals and had imposed the public-hearing requirement simply as a means to that end. 39 "The legislative history," we said, "demonstrates that underlying the restriction of appellate review to orders following public hearings was congressional concern that review be based on an administrative decision with an adequate record," 40 and we reasoned "that appellate review was appropriate after a hearing because 'an adequate record exists for such review.' " 41 Since "Congress designed [the] review provisions with the jurisdictional touchstone of the reviewable record in mind," 42 the crucial inquiry is whether such a record is available. 43
In the case at bar, notices of the two applications for experimental use permits were published in the Federal Register, 44 and interested parties were invited to submit written comments. 45 The notices announced that information collected in the proceeding concerning re-registration of Compound 1080 46 would also be considered in deciding whether the sought-after permits should issue. 47 As a result, EPA received comments from fifteen interested parties, 48 amassed over 20,000 pages of testimony and exhibits, 49 and has included 178 items in the certified index 50--a record wholly adequate for appellate review. It is of no consequence that much of this record was compiled during the hearings on re-registration, for parties interested in the two applications for experimental use permits, whether or not submitting comments thereon, could reasonably rely upon EPA's published commitment to take account of evidence adduced in other proceedings dealing with Compound 1080. EPA cannot now attempt to exclude that evidence from consideration in determining our jurisdiction here.
We do not say that jurisdiction lies in a court of appeals to review every EPA action taken under the Act, 51 nor do we suggest that we are empowered to review every experimental use permit issued by the agency. We hold no more than that the record in this case brings it within our jurisdiction under the Act's judicial-review section as this court has previously construed it.
Both of the experimental use permits at issue expired before this case reached oral argument in this court. 52 On this ground, EPA has moved to dismiss the petition for review as moot. 53 Petitioner, on the other hand, claims 54 that the case falls within the exception to the mootness doctrine for "short term orders, capable of repetition, yet evading review." 55 We agree, and accordingly deny the motion.
The Constitution limits the jurisdiction of federal courts to "Cases" and "Controversies." 56 Since we are precluded from rendering advisory opinions, 57 litigation is nonjusticiable if our determination could not affect the rights of the parties. 58 But a court does not necessarily lack power to review agency action effectuated by a series of short-term orders, although the particular order attacked has expired by its own terms. As the Supreme Court has made clear, the case is not moot when "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again." 59 The permits implicated here easily meet both prongs of this test.
As granted originally, the permits were to endure for...
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