Love v. Thomas

• Decision Date: 28 September 1988
• Docket Number: No. 87-3866,87-3866
• Citation: 858 F.2d 1347
• Parties: 18 Envtl. L. Rep. 20,368 James M. LOVE; Northwest Food Processors Association; Tualatin Valley Fruit Marketing, Inc.; Plaintiffs-Appellees; Dave Frohnmayer, Attorney General for the State of Oregon, on behalf of the people of the state of Oregon, Intervenor-Appellee; v. Lee M. THOMAS, Administrator, United States Environmental Protection Agency, Defendant-Appellant; American Federation of Labor--Congress of Industrial Organizations; Natural Resources Defense Council, Inc.; United Farmworkers of Washington State; Pineros Y Campesinos Unidos Del Noroeste, Inc.; Christina Esquivel; Diana Guzman; Alicia Prieto; Aurora Leon; Zenaida Prieto; Maria Esquivel; Constancio Martinez; Juan Prieto, Jr.; Enrique Prieto; Antonio Leon; Intervenors.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1347

858 F.2d 1347

18 Envtl. L. Rep. 20,368

James M. LOVE; Northwest Food Processors Association;

Tualatin Valley Fruit Marketing, Inc.; Plaintiffs-Appellees;

Dave Frohnmayer, Attorney General for the State of Oregon, on behalf of the people of the state of Oregon, Intervenor-Appellee; v. Lee M. THOMAS, Administrator, United States Environmental

Protection Agency, Defendant-Appellant;

American Federation of Labor--Congress of Industrial

Organizations; Natural Resources Defense Council, Inc.;

United Farmworkers of Washington State; Pineros Y

Campesinos Unidos Del Noroeste, Inc.; Christina Esquivel;

Diana Guzman; Alicia Prieto; Aurora Leon; Zenaida Prieto;

Maria Esquivel; Constancio Martinez; Juan Prieto, Jr.;

Enrique Prieto; Antonio Leon; Intervenors.

No. 87-3866.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 17, 1987.

Decided Jan. 29, 1988.

As Amended on Denial of Rehearing

and Rehearing En Banc

Sept. 28, 1988.

John A. Bryson, U.S. Dept. of Justice, Washington, D.C., for defendant-appellant.

Susan K. Eggum, McEwen, Gisvold, Rankin & Stewart, Portland, Or., Phillip D. Chadsey and Charles F. Adams, Stoel, Rives, Boley, Jones & Grey, Portland, Or., for plaintiffs-appellees.

Arden J. Olson, Asst. Atty. Gen., State of Or., for intervenor-appellee.

Albert H. Meyerhoff, Natural Resources Defense Council, Inc., San Francisco, Cal., for intervenors.

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

Before NORRIS, KOZINSKI and THOMPSON, ^* Circuit Judges.

KOZINSKI, Circuit Judge:

Farmers and food processors in the Pacific Northwest brought this lawsuit to enjoin the Environmental Protection Agency from suspending registrations of the pesticide dinoseb (2-sec-butyl-4, 6-dinitrophenol). Plaintiffs use products containing dinoseb or its salts in the cultivation of green peas, snap beans, cucurbits and caneberries. ¹ 1] As counsel for the State of Oregon dramatically proclaimed at oral argument, this case "essentially is ... about whether we'll be able to have raspberries next year."

Facts

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C.A. Secs. 136-136y (1980 & Supp.1987), establishes an elaborate framework for the regulation of pesticide use in the United States. No pesticide may be sold or distributed unless it is registered with the EPA. FIFRA Secs. 3(a), 12(a)(1)(A), 7 U.S.C.A. Secs. 136a(a), 136j(a)(1)(A). In order to register a pesticide, an applicant, who may be a manufacturer or user of the product, must demonstrate with sufficient scientific evidence that, "when used in accordance with widespread and commonly recognized practice[, the pesticide] will not generally cause unreasonable adverse effects on the environment." FIFRA Sec. 3(c)(5)(D), 7 U.S.C.A. Sec. 136a(c)(5)(D). After a pesticide has been registered, the EPA Administrator must issue a notice of his intent to cancel its registration or change its classification " 'whenever there is a substantial question about the safety of a registered pesticide.' " Environmental Defense Fund, Inc. v. EPA, 510 F.2d 1292, 1296 n. 4 (D.C.Cir.1975) (quoting Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 594 (D.C.Cir.1971); see FIFRA Sec. 6(b), 7 U.S.C.A. Sec. 136d(b).

Because cancellation or reclassification proceedings may take one or two years to complete, ² FIFRA authorizes the Administrator to suspend a pesticide's registration pending the outcome of the proceedings if he determines that suspension "is necessary to prevent an imminent hazard." FIFRA Sec. 6(c)(1), 7 U.S.C.A. Sec. 136d(c)(1). ³ Absent an emergency, the Administrator may not issue a suspension order until he has done two things: (1) notified registrants of the pesticide that he intends to cancel the registration and that he will issue a suspension order based upon "findings pertaining to the question of 'imminent hazard,' " which he must include in the notice; and (2) given registrants an opportunity for an "expedited hearing" on "whether an imminent hazard exists." FIFRA Sec. 6(c)(1), 7 U.S.C.A. Sec. 136d(c)(1).

Dinoseb is a pesticide registered for use as an herbicide, insecticide, fungicide and desiccant, and has been used in the United States for nearly forty years. It is applied primarily as a contact herbicide to control broadleaf weeds and as a desiccant on caneberries to suppress growth that would obstruct harvesting. Decision and Emergency Order Suspending the Registrations of All Pesticide Products Containing Dinoseb, 51 Fed.Reg. 36634, 36635 (EPA Oct. 14, 1986) [hereinafter Emergency Order]; Intent to Cancel and Deny All Registrations for Pesticide Products Containing Dinoseb, 51 Fed.Reg. 36650, 36657-58 (EPA Oct. 14, 1986) [hereinafter Notice of Intent]. In October 1986 there were nearly three hundred federal registrations for pesticides containing dinoseb or its salts.

In the spring of 1986, the EPA developed doubts about the safety of dinoseb. Preliminary studies showed that dinoseb may cause serious health risks to persons exposed to it, including sterility in men and birth defects in the unborn children of pregnant women. Emergency Order, 51 Fed.Reg. at 36636-38. In October 1986, the EPA began proceedings to cancel all dinoseb registrations. See Notice of Intent, 51 Fed.Reg. at 36650. On October 7, the Administrator issued an emergency suspension order under section 6(c)(3) of FIFRA, 7 U.S.C.A. Sec. 136d(c)(3), prohibiting the sale, distribution and use of dinoseb pending the completion of the cancellation proceedings. Emergency Order, 51 Fed.Reg. at 36634, 36648. ⁴ The order, along with a notice of intent to cancel all registrations, was mailed to the registrants of dinoseb, and was subsequently published in the Federal Register. Id. at 36634. Four registrants requested a hearing on the emergency suspension order. ⁵ The hearing convened on October 20 before an administrative law judge but, for reasons not apparent from the record, the registrants jointly withdrew their requests ten days later.

Plaintiffs, as nonregistrant users of dinoseb, are not permitted by FIFRA to initiate an expedited administrative hearing on the suspension order. ⁶ However, under EPA regulations they were permitted to and did petition on behalf of growers in Washington, Oregon and Idaho for a so-called "subpart D" reconsideration of the suspension. See 40 C.F.R. Secs. 164.130-133 (1986). ⁷ The EPA denied the petitions of plaintiff Northwest Food Processors Association and others, supported by applications from the three states, with respect to green peas, snap beans and lima beans on April 1, 1987. See Denial of Hearing Concerning Application to Modify the Final Suspension Order for Pesticide Products Containing Dinoseb, 52 Fed.Reg. 11119, 11121 (EPA April 7, 1987). The EPA had not acted with regard to caneberries and cucurbits at the time the district court enjoined enforcement of the suspension order. See id. at 11120.

On April 3, 1987, with the growing season upon them, plaintiffs rushed into district court seeking relief from the EPA's suspension order. The growers' argument was quite straightforward: They simply could not grow their crops without dinoseb. Unlike farmers in other parts of the country, farmers in the Northwest have no substitutes for dinoseb. Climatic conditions and the prevalence of certain pests, black nightshade in particular, make dinoseb the only effective pesticide available on the market. For example, the farmers argued, without dinoseb there would be no caneberry crop in the Pacific Northwest, where 95 percent of the nation's commercial caneberry crop is grown. Potential crops losses would amount to $39.2 million this year. See Love v. Thomas, 668 F.Supp. 1443, 1449-50 (D.Or.1987) [hereinafter Dist.Ct. op.]; 2 Reporter's Transcript (RT) at 257.

On April 15, 1987, after a two-day hearing, the district court asserted jurisdiction on the basis of section 6(c)(4) of FIFRA, 7 U.S.C.A. Sec. 136d(c)(4). See Dist.Ct. op. at 1446, 1447. It then preliminarily enjoined enforcement of the suspension order pending completion of the EPA's cancellation proceedings, and allowed use of dinoseb subject to twelve conditions, see pp. 1363-1364 infra, patterning the injunction after the EPA's modification of its suspension order as to certain other crops, see p. 1351 n. 7 supra. The court permitted limited sales of dinoseb to growers of certain crops; prohibited uncertified applicators from using the pesticide; barred "[w]omen of child-bearing age, i.e., under the age of 45," from "any aspect of dinoseb application"; restricted the manner and extent of application of dinoseb to crops; and set standards for applicator clothing and exposure. See Love v. Thomas, No. 87-343-RE, at 2-4 (D.Or. April 15, 1987) [hereinafter Preliminary Injunction], quoted at pp. 1362-1363 infra. ⁸ The court entered final judgment on May 1, 1987, and the EPA timely appealed.

The Parties and Their Contentions

The EPA's appeal is supported by certain intervenors, including various labor unions that represent agricultural workers ("the unions"). Plaintiffs defend the district court's judgment with the support of the State of Oregon, which intervened below.

The EPA argues that the district court lacked jurisdiction to review the suspension order. On the merits, the EPA argues that the court erred in invalidating the suspension order and enjoining enforcement. The unions support the EPA and in addition argue that the district court's order denied farmworkers equal protection because it treated men and women disparately. Plaintiffs and the State of Oregon vigorously assert that the district court had jurisdiction and urge us to uphold its judgment.

Discussion

I.

The first question we must address is that of jurisdiction. ⁹ That turns out to be a difficult issue, requiring close analysis of a rather convoluted statutory provision. As noted earlier, when the EPA commences proceedings to cancel the registration of a...