807 F.2d 776 (9th Cir. 1986), 85-4026, Merrell v. Thomas

Docket Nº:85-4026.
Citation:807 F.2d 776
Party Name:Paul E. MERRELL, Plaintiff-Appellant, v. Lee THOMAS, Defendant-Appellee, and Ciba-Geigy Corporation, et al., Defendants-Intervenors.
Case Date:December 31, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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807 F.2d 776 (9th Cir. 1986)

Paul E. MERRELL, Plaintiff-Appellant,


Lee THOMAS, Defendant-Appellee,


Ciba-Geigy Corporation, et al., Defendants-Intervenors.

No. 85-4026.

United States Court of Appeals, Ninth Circuit

December 31, 1986

Argued and Submitted Oct. 2, 1986.

Michael Axline, John E. Bonine, Eugene, Or., for plaintiff-appellant.

Kenneth W. Weinstein, McKenna, Conner & Cuneo, Peter R. Steenland, Dept. of Justice, John A. Bryson, Land & Natural Resource Div., Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before SNEED, KENNEDY, and KOZINSKI, Circuit Judges.

SNEED, Circuit Judge:

This appeal raises a single legal issue: whether the Environmental Protection Agency (EPA) must comply with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. Secs. 4321-4370a, when it registers pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. Secs. 136-136y. The district court, 608 F.Supp. 644, ruled that it need not. After examining FIFRA's registration procedure, its registration standard, and the applicable review procedures, we conclude that Congress did not intend that the EPA should comply with NEPA. Therefore, we affirm.



Appellant Paul E. Merrell, plaintiff below, sued to enjoin the EPA from continuing to register seven herbicides which his local road department sprayed along the road leading to his wife's farm. Merrell charged that the registrations were invalid because the EPA and its predecessor agency had not made public the information on which they were based. Merrell alleged that the EPA thereby violated NEPA and its implementing regulations, 40 C.F.R. Secs. 1500.1-1508.28, particularly insofar as the EPA failed either to prepare a site-specific environmental impact statement (EIS)

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for each right-of-way use registration, or to explain why no EIS was necessary under 42 U.S.C. Sec. 4332(2)(C). Complaint for Injunctive Relief, Excerpt of Record (E.R.) at 1-10.

After defendant Ruckelshaus answered for the EPA, Merrell moved for partial summary judgment. Subsequently, the district court allowed as defendant intervenors Ciba-Geigy Corporation, Dow Chemical Company, Velsicol Chemical Company, the National Agricultural Chemicals Association, Oregonians for Food and Shelter, Monsanto Company, and E.I. Dupont DeNemours & Company. Defendant and defendant intervenors moved for judgment on the pleadings. The National Resources Defense Council filed a brief in support of plaintiff's motion for summary judgment. On May 20, 1985, the district court entered summary judgment for defendant Thomas, who had been substituted for Ruckelshaus under Federal Rule of Civil Procedure 25(d). Merrell timely appealed on July 18, 1985.



This court reviews de novo a lower court's grant of summary judgment. Defendant is entitled to summary judgment if, viewing the evidence in a light most favorable to plaintiff, no genuine issue of material fact remains and defendant is entitled to judgment as a matter of law. Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 764 (9th Cir.1986). If plaintiff will bear the burden of proof at trial as to an element essential to its case, and plaintiff fails to make a showing sufficient to establish the existence of that element, then the court may enter summary judgment against plaintiff. Celotex Corp. v. Catrett, --- U.S. ----, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).



  1. Pre-1972 Procedures

    Since 1947, pesticides that move in interstate commerce have had to be registered with the Federal Government. FIFRA, Pub. L. No. 80-104, Sec. 4(a), 61 Stat. 163, 167 (1947). To register a pesticide, an applicant had to submit its name, its label, the claims made for it and, "if requested," a description of tests made and their results. Id. Under the original act, an applicant who failed to meet even these minimal standards could nevertheless obtain a "protest registration" for his product. Id. Sec. 4(c), 61 Stat. at 168. In 1964, Congress eliminated the protest registration. A disappointed applicant could instead request a referral to an advisory committee or a public hearing. Act of May 12, 1964, Pub. L. No. 88-305, Sec. 3, 78 Stat. 190, 190-91. Otherwise, there was no opportunity for public participation.

    In 1970, when FIFRA's pesticide registration procedure was as described above, Congress passed NEPA, Pub. L. No. 91-190, 83 Stat. 852 (1970). Section 102 of NEPA requires that:

    all agencies of the Federal Government shall--

    * * *

    (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on--

    (i) the environmental impact of the proposed action,

    (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

    (iii) alternatives to the proposed action,

    (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

    (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

    42 U.S.C. Sec. 4332(2). This describes the EIS. Preparation of an EIS is a procedural

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    obligation designed to assure that agencies give proper consideration to the environmental consequences of their actions. Aberdeen & R. R.R. v. Students Challenging Regulatory Agency Procedures (SCRAP), 422 U.S. 289, 319, 95 S.Ct. 2336, 2355, 45 L.Ed.2d 191 (1975). The question before us is, did Congress intend to superimpose NEPA's procedures on top of the FIFRA registration procedure?

  2. The 1972 Amendments

    After 1970, the EPA did not change its FIFRA regulations to require preparation of EIS's. In 1972, Congress comprehensively amended FIFRA, in part in response to "increasing public concern over the uses and application of pesticides [reflecting] expanded interest in environmental protection by many citizens." H.R.Rep. No. 511, 92d Cong., 1st Sess. 4 (1971). Yet Congress gave no indication that it thought NEPA would apply. Instead, Congress created a registration procedure within FIFRA to ensure consideration of environmental impact--a procedure that apparently made NEPA superfluous. Congress also created limited opportunities for public notice and public participation in FIFRA's registration procedure. But the 1972 amendments did not make FIFRA a carbon copy of NEPA. It reflected a compromise between environmentalists, farmers, and manufacturers. Id. at 5. The differences between FIFRA's registration procedure and NEPA's requirements indicate that Congress did not intend that NEPA apply.

    First, if an application for a pesticide registration involved a new active ingredient or a changed use pattern, the 1972 amendments required the Administrator to place a notice in the Federal Register before he made his decision. Federal Environmental Pesticide Control Act of 1972, Pub. L. No. 92-516, Sec. 2, 86 Stat. 973, 980 (amending FIFRA section 3(c)(4)). This is the only provision for public notice prior to a decision to register a pesticide. It obviously falls short of an EIS requirement, both because the Administrator will not have to publish the notice with respect to many applications, and because the notice does not contain the information contained in an EIS.

    Second, the 1972 amendments required the Administrator to act "as expeditiously as possible" on an application, id., 86 Stat. at 980 (amending FIFRA section 3(c)(3)), and Congress expected him to reach a decision within three months of receiving an application, H.R.Rep. No. 511, 92d Cong., 1st Sess. 20 (1971). Such a time frame is incompatible with the lengthy research and hearings that are ordinarily part of preparing an EIS. Compare Flint Ridge Dev. Co. v. Scenic Rivers Ass'n, 426 U.S. 776, 788-91 & 789 n. 10, 96 S.Ct. 2430, 2438-39, 2438 n. 10, 49 L.Ed.2d 205 (1976) (statutory requirement that filing take effect in thirty days means that NEPA cannot apply) with Jones v. Gordon, 792 F.2d 821, 826-27 (9th Cir.1986) (agency regulation requiring publication of notice "as soon as practicable" after application is deemed sufficient does not prevent NEPA from applying).

    Third, the 1972 amendments provided that the Administrator would make available to the public the information on which he based a decision to register a pesticide within thirty days of that decision. Federal Environmental Pesticide Control Act of 1972, Sec. 2, 86 Stat. at 980 (amending FIFRA section 3(c)(2)). But the Administrator would not release information if it was test data for which a subsequent user would have to compensate an applicant, or if it contained trade secrets. Id., 86 Stat. at 979-80, 989 (amending FIFRA sections 3(c)(1)(D), 3(c)(2), 10(b)). NEPA does not contain equivalent restrictions. 1

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    Thus, when Congress revised FIFRA in 1972, it designed a registration procedure with public notice and public participation provisions that differ materially from those that NEPA would require.

  3. Post-1972 Amendments

    When Congress amended FIFRA in 1975, 1978, and 1984, the EPA had interpreted FIFRA so as not to require compliance with NEPA. And "when Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the 'congressional failure to revise or repeal the agency's interpretation is persuasive evidence that the interpretation is the one intended by Congress.' " Commodity Futures Trading Comm'n v. Schor, --- U.S. ----, 106 S.Ct. 3245, 3255, 92 L.Ed.2d 675 (1986) (quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-75, 94 S.Ct. 1757, 1761-62, 40 L.Ed.2d 134 (1974) (footnotes omitted)).

    The 1978 amendments to...

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