Environmental Defense Fund, Inc. v. Ruckelshaus, No. 23813.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: BAZELON, , and ROBINSON and ROBB, Circuit
• Citation: 439 F.2d 584
• Docket Number: No. 23813.
• Decision Date: 07 January 1971
• Parties: ENVIRONMENTAL DEFENSE FUND, INCORPORATED et al., Petitioners, v. William D. RUCKELSHAUS, Administrator of the Environmental Protection Agency & Environmental Protection Agency, Respondents, Izaak Walton League of America, Montrose Chemical Corporation of California, State of New York, Intervenors.

439 F.2d 584 (1971)

ENVIRONMENTAL DEFENSE FUND, INCORPORATED et al., Petitioners,
v.
William D. RUCKELSHAUS, Administrator of the Environmental Protection Agency & Environmental Protection Agency, Respondents,
Izaak Walton League of America, Montrose Chemical Corporation of California, State of New York, Intervenors.

No. 23813.

United States Court of Appeals, District of Columbia Circuit.

Argued September 9, 1970.

Decided January 7, 1971.

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Mr. James W. Moorman, Washington, D. C., with whom Mr. Charles R. Halpern, Washington, D. C., was on the brief

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for petitioners Environmental Defense Fund, Incorporated, Sierra Club, West Michigan Environmental Action Council, and National Audubon Society. Messrs. Edward Lee Rogers and Edward Berlin, Washington, D. C., were on the brief for petitioner Environmental Defense Fund, Incorporated

Mr. Raymond W. Fullerton, Atty., Department of Agriculture, of the bar of the Court of Appeals of Maryland, pro hac vice, by special leave of Court, with whom Messrs. Charles W. Bucy, Asst. Gen. Counsel, Department of Agriculture, and Alan S. Rosenthal, Atty., Department of Justice, were on the brief, for respondents. Mr. Paul M. Donovan, Atty., Department of Agriculture, also entered an appearance for respondents.

Mr. Philip Weinberg, Asst. Atty. Gen. of the State of New York, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, with whom Mr. Gordon P. MacDougall, Washington, D. C., was on the brief, for intervenor, State of New York.

Mr. Robert L. Ackerly, Washington, D. C., for intervenor, Montrose Chemical Corporation of California.

Messrs. John D. Conner, Washington, D. C., and Charles A. O'Connor, III, filed a brief on behalf of National Agricultural Chemicals Association, as amicus curiae.

Messrs. James W. Moorman and Charles R. Halpern, Washington, D. C., entered appearances for intervenor, Izaak Walton League of America.

Before BAZELON, Chief Judge, and ROBINSON and ROBB, Circuit Judges.

BAZELON, Chief Judge:

This is a petition for review of an order of the Secretary of Agriculture,¹ refusing to suspend the federal registration of the pesticide DDT or to commence the formal administrative procedures that could terminate that registration. We conclude that the order was based on an incorrect interpretation of the controlling statute, and accordingly remand the case for further proceedings.

I

At the outset, we reject respondents' contention that this court lacks jurisdiction to entertain the petition.² The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) provides that for certain purposes pesticides must be registered with the Secretary of Agriculture, and that in order to be registered a pesticide must conform to the statutory standards for product safety.³ When it appears that a registered pesticide fails to conform to these standards, its registration is subject to cancellation in accordance with procedures prescribed by statute.⁴ In the ordinary case, the administrative process begins when the Secretary issues a notice of cancellation to the registrant. The matter may then be referred, at the request of the registrant, to a scientific advisory committee, and to a public hearing, before the Secretary issues the order that effectively cancels or continues the registration.

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Instead of issuing a notice of cancellation, the Secretary may alternatively initiate the process by summarily suspending a registration, when "necessary to prevent imminent hazard to the public." In that case, the registrant is similarly entitled to call for a scientific advisory committee and a public hearing, though the hearing is to be expedited. The suspension order thus operates to afford interim relief during the course of the lengthy administrative proceedings. Certain orders of the Secretary relating to suspension or cancellation are reviewable in this court at the instance of any person who will be adversely affected.⁵

Petitioners here are organizations engaged in activities relating to environmental protection.⁶ On October 31, 1969, they submitted a petition to the Secretary requesting him to issue notices of cancellation with respect to all registrations of pesticides containing DDT, and further, to suspend those registrations pending the conclusion of the administrative proceedings. They submitted extensive scientific documentation in support of their petition. The Secretary initially issued notices of cancellation with respect to some uses of DDT, and published in the Federal Register a notice announcing his intention to issue cancellation notices with respect to all other DDT uses that are not essential for the protection of human health; he invited comments on that proposal.⁷ No action was taken on the request for summary suspension.

On May 28, 1970, this court concluded that the Secretary's silence on the request for suspension was equivalent to a denial of that request, and that the denial was reviewable as a final order, because of its immediate impact on the parties.⁸ The court remanded the

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case to the Secretary for a fresh determination on the question of suspension and for a statement of the reasons for his decision. With respect to the request for cancellation notices, we similarly remanded for a decision on the record or for a statement of reasons for deferring the decision, but we reserved judgment on the question whether there was presently a decision ripe for review in this court. We rejected the suggestion that petitioners lack standing to seek review of the action of the Secretary, and that the decisions with respect to suspension and cancellation are committed by law to the unreviewable discretion of the Secretary.⁹ No new arguments have been presented that cast doubt on the correctness of those conclusions, and we reaffirm them today

II

We are not persuaded to reach a different result by the recent opinion of the Seventh Circuit in Nor-Am Agricultural Products, Inc. v. Hardin.¹⁰ In Nor-Am, the court en banc held that an order suspending the registration of a fungicide under the FIFRA was not reviewable by means of a suit for injunction in the district court. The Nor-Am court found that the plaintiffs in that case had failed to show a threat of irreparable injury sufficient to warrant injunctive relief in the district court.¹¹ The plaintiff-manufacturers based their claim largely on the prospect of financial losses, which the court found insufficient in comparison with the possibility of harm to the public health and safety.

While that analysis is sufficient to explain the result in Nor-Am, the court also indicated that the plaintiffs in that case would have been equally unsuccessful had they sought statutory review in the court of appeals. In the view of the Nor-Am court, a suspension order lacks the finality that is a prerequisite both to statutory review in the court of appeals under the FIFRA, and to review in any court under the Administrative Procedure Act.¹² In the view of the Nor-Am court, judicial review under the FIFRA is limited to those orders made after full administrative adjudication on the record.¹³ The court acknowledged that an exception might be made for orders denying suspension, like the order involved in this case, because an order denying suspension may terminate the administrative process. But an order granting suspension will always be followed by further administrative proceedings, and therefore it is not ripe for review in the view of the Nor-Am court.¹⁴

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We do not find in the FIFRA any conclusive indication that Congress intended to limit review to those orders made after advisory committee proceedings and a public hearing. Nor-Am relies on the provision that administrative findings of fact "shall be sustained if supported by substantial evidence when considered on the record as a whole," and the further provision that the record shall include "any report and recommendation of an advisory committee."¹⁵ Those provisions indicate that Congress contemplated that judicial review would ordinarily occur at the instance of the manufacturer, after advisory committee proceedings and a public hearing.¹⁶ But they do not make advisory committee proceedings or a public hearing a jurisdictional prerequisite to review. In the first place, statutory review is available to persons other than the manufacturer, who may have no right to call for advisory committee proceedings or a public hearing.¹⁷ In the second place, the manufacturer himself may in some circumstances be entitled to judicial review of an administrative determination that is not subject to further consideration in subsequent administrative proceedings.¹⁸ In either case, the lack of a committee report and a hearing record may limit the scope of review, but it does not preclude review entirely.¹⁹

Nor can we find in the statutory scheme any support for the Nor-Am distinction between orders granting and denying suspension. For the administrative proceedings that follow suspension are equally available after a refusal to suspend. If the Secretary orders suspension, the proceedings are expedited; otherwise they may follow in due course after he issues cancellation notices. In either event, there is a prospect of further administrative action, but that prospect does not resolve for us the question of reviewability. The subsequent proceedings are designed solely to resolve the ultimate question whether cancellation is warranted, and not to shed any further light on the question whether there is a sufficient threat of "imminent hazard" to warrant suspension in the interim. Once the Secretary has made a decision with respect to suspension, whether he decides to grant or to deny that relief, the "imminence" of the hazard is no longer at issue. To determine whether an order relating to suspension is...