Environmental Defense Fund v. Hardin, Civ. A. No. 2319-70.

• Decision Date: 14 April 1971
• Docket Number: Civ. A. No. 2319-70.
• Parties: ENVIRONMENTAL DEFENSE FUND, Committee for Leaving the Environment of America Natural (Clean), National Wildlife Federation, and Florida Audubon Society, Plaintiffs, v. Clifford M. HARDIN, Secretary of Agriculture, United States Department of Agriculture, and Agricultural Research Service, Defendants.
• Court: U.S. District Court — District of Columbia

325 F. Supp. 1401

ENVIRONMENTAL DEFENSE FUND, Committee for Leaving the Environment of America Natural (Clean), National Wildlife Federation, and Florida Audubon Society, Plaintiffs, v. Clifford M. HARDIN, Secretary of Agriculture, United States Department of Agriculture, and Agricultural Research Service, Defendants.

Civ. A. No. 2319-70.

United States District Court, District of Columbia.

April 14, 1971.

Edward Lee Rogers, East Setauket, N. Y., Jon T. Brown, Wallace L. Duncan, Washington, D. C., for Environmental Defense Fund and CLEAN.

Robert M. Kennan, Jr., Washington, D. C., for National Wildlife Federation.

David Gluckman, Orlando, Fla., for Audubon Society.

Walter Kiechel, Jr., Kenneth F. Hoffman, and Stuart B. Shoenburg, Attys., Dept. of Justice, Washington, D. C., for defendants.

MEMORANDUM

GASCH, District Judge.

Plaintiffs, through this action, seek to enjoin the Secretary of Agriculture from undertaking a cooperative Federal-State program to control the imported fire ant in the southeastern United States. The details of this program and the facts and circumstances surrounding it are more fully set out in the Findings of Fact which accompany this Memorandum. Plaintiffs' petition for injunction is based on their allegations that the Secretary has failed to satisfy the requirements of the National Environmental Policy Act of 1969, Pub.L. No. 91-190, 91st Cong., 1st Sess., 83 Stat. 852 (January 1, 1970), 42 U.S.C. § 4331 et seq. It is, therefore, appropriate to examine the purposes and requirements of this Act and to delineate the scope of judicial review of agency action with respect to it.

Section 101 of the National Environmental Policy Act expresses the underlying legislative policy.

The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profund influences of population growth; high-density urbanization, industrial expansion, resource exploitation, and new and expending technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans. 42 U.S.C. § 4331(a).

One of the methods chosen by Congress to implement the policy enunciated above was the creation of the Council on Environmental Quality, 42 U.S.C. §§ 4341-4347. This independent agency will provide a consistent and expert source of review of national policies, environmental problems and trends, and aid in the coordination of governmental programs affecting the environment.

In addition to establishing the Council, Congress specified certain procedural requirements with which the executive agencies must comply prior to initiating a program which will affect the environment. It is this section of the Act with which we are concerned in this action.

Congress did not intend by the Act to relocate or diminish the decisionmaking responsibility currently existing with respect to such programs, but it did intend to make such decisionmaking more responsive and more responsible. Environmental Defense Fund, Inc. v. Corps of Engineers, 1971, D.Ark., 325 F.Supp. 749. Broadly speaking the Act requires an agency to undertake research during the planning of its programs that is adequate to expose their potential environmental impact and to disclose the results of this research to other interested agencies. The details of these research and disclosure requirements are set out at 42 U.S.C. § 4332.

Under section 4332(2) (A) government agencies are directed to "utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment." This section makes the completion of an adequate research program a prerequisite to agency action. The adequacy of the research should be judged in light of the scope of the proposed program and the extent to which existing knowledge raises the possibility of potential adverse environmental effects. The Act envisions that program formulation will be directed by research results rather than that research programs will be designed to substantiate programs already decided upon. Thus, this provision of the Act requires a diligent research effort, undertaken in good faith, which utilizes effective methods and reflects the current state of the art of relevant scientific discipline.

Section 4332(2) (C) requires the initiating agency to prepare and distribute an environmental impact statement concerning proposed programs. This statement is to contain the results of the research conducted during the planning phase together with adequate documentation. The statement must be sufficiently detailed to allow a responsible executive to arrive at a reasonably accurate decision regarding the environmental benefits and detriments to be expected from program implementation. The statement should contain adequate discussion of alternative proposals to allow for program modification during agency review so that the results to be achieved will be in accordance with national environmental goals. This section also requires that other agencies of the government with special expertise in or legal jurisdiction over the subject matter of the program be consulted in advance of program definition. Comments and suggestions of these agencies should accompany the final impact statement.

A final procedural requirement of the Act is contained in section 4332(2) (G), which requires the agencies to "initiate and utilize ecological information in the planning and development of resource-oriented projects." This directive recognizes the growing importance of the environmental sciences and directs the agencies to undertake research of a broader scope than may have been traditionally within their jurisdiction.

Thus in reviewing the Department of Agriculture program under consideration here, the Court will not substitute its judgment for that of the Secretary on the merits of the proposed program but will require that the Secretary comply with the procedural requirements of the National Environmental Policy Act as outlined above.

Significant aspects of the Department of Agriculture's research program conducted in connection with the fire ant control program are set forth in the Court's Findings of Fact. The Court is satisfied that the scope and extent of this research is adequate to comply with the requirements of the Act. The environmental impact statement prepared by the Department, which forms part of the record of this case, is sufficient in detail and adequate in scope of coverage demanded by the Act.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This matter came on for hearing on plaintiffs' motion for preliminary injunction. Upon consideration of the pleadings and exhibits filed, extensive testimony taken in open Court, and counsel having been heard, the Court makes the following

FINDINGS OF FACT

1. The imported fire ant (Solenopsis saevissima) was accidentally introduced into the Southern United States from South America sometime around 1918. It presently infests approximately 126 million acres in over 400 counties in the nine southeastern states of Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Texas. This ant has reached the climatic limit of its range northward in this country. However, it could inhabit river-bottom and irrigated areas to the west of its present boundary and thereby considerably expand its range of infestation. Suitable habitats exist for the imported fire ant in large portions of California, Oregon, and Washington should breeding forms reach these areas.

2. The imported fire ant is a pest that adversely affects human health. Its sting is painful and the resulting pustule and lesion presents the risk of secondary infection. In a small number of sensitized persons the ant sting can cause allergic or anaphylactic reactions which may cause death. The United States Department of Health, Education, and Welfare has concluded that on the whole the fire ant "presents a low health hazard to humans in the United States."

3. The imported...