Environmental Defense Fund v. Environmental Pro. Ag.

• Decision Date: 05 May 1972
• Docket Number: No. 71-1365.,71-1365.
• Citation: 465 F.2d 528
• Parties: ENVIRONMENTAL DEFENSE FUND, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and William D. Ruckelshaus, Administrator, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

465 F.2d 528 (1972)

ENVIRONMENTAL DEFENSE FUND, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and William D. Ruckelshaus, Administrator, Respondents.

No. 71-1365.

United States Court of Appeals, District of Columbia Circuit.

Argued December 8, 1971.

Decided May 5, 1972.

As Amended May 16, 1972.

COPYRIGHT MATERIAL OMITTED

Mr. William A. Butler, East Setauket, N. Y., with whom Messrs. Edward Lee Rogers, East Setauket, N. Y., Edward Berlin and James W. Moorman, Washington, D. C., were on the brief, for petitioner.

Mr. Michael C. Farrar, Asst. Gen. Counsel, Environmental Protection Agency, with whom Mr. L. Patrick Gray, III, Asst. Atty. Gen., Messrs. Alan S. Rosenthal, Atty. Dept. of Justice, and Thomas H. Kemp, Atty. Environmental Protection Agency, were on the brief, for respondents.

Before FAHY, Senior Circuit Judge, and LEVENTHAL and ROBINSON, Circuit Judges.

LEVENTHAL, Circuit Judge:

On December 3, 1970, petitioner Environmental Defense Fund (EDF), a non-profit New York corporation,¹ petitioned the Environmental Protection Agency (EPA) under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. §§ 135-135k, for the immediate suspension and ultimate cancellation of all registered uses of aldrin and dieldrin, two chemically similar chlorinated hydrocarbon pesticides. On March 18, 1971, the Administrator of the EPA announced the issuance of "notices of cancellation" for aldrin and dieldrin because of "a substantial question as to the safety of the registered products which has not been effectively countered by the registrant." He declined to order the interim remedy of suspension, pending final decision on cancellation after completion of the pertinent administrative procedure, in light of his decision that "present uses of aldrin and dieldrin do not pose an imminent threat to the public such as to require immediate action." EDF filed this petition to review the EPA's failure to suspend the registration.

I. SIGNIFICANCE OF EPA'S DECISION ON IMMEDIATE SUSPENSION OF FIFRA REGISTRATION

We begin by reviewing the significance of an EPA decision to issue or withhold an order of immediate suspension of a pesticide registration, pending final administrative consideration.

A. The Statutory Framework of FIFRA

Since 1970 the Administrator of the EPA has been charged with administering the two systems provided by Congress to regulate the introduction of potentially harmful pesticides into the environment: the establishment of registration and labeling requirements for "economic poisons" under FIFRA, formerly assigned to the Secretary of Agriculture; and the establishment of tolerance limits for shipment in interstate commerce of crops "adulterated" by pesticide residues, under the Food, Drug and Cosmetic Act, 21 U.S.C. 301, et seq., formerly assigned to the Department of Health, Education & Welfare.²

Aldrin and dieldrin are "economic poisons" under the definition in § 2 of FIFRA, 7 U.S.C. § 135(a)(1), and hence are required to be registered with EPA before they may be distributed in interstate commerce, 7 U.S.C. § 135b. An economic poison may lawfully be registered only if it is properly labeled — not "misbranded." Section 2(z) of FIFRA, insofar relevant here, provides that an economic poison is "misbranded," 7 U.S.C. § 135(z) (2) —

(c) if the labeling accompanying it does not contain directions for use which are necessary and if complied with adequate for the protection of the public;

(d) if the label does not contain a warning or caution statement which may be necessary and if complied with adequate to prevent injury to living man and other vertebrate animals, vegetation, and useful invertebrate animals;

* * * * * *

(g) if in the case of an insecticide, nematocide, fungicide, or herbicide when used as directed or in accordance with commonly recognized practice it shall be injurious to living man or other vertebrate animals, or vegetation, except weeds, to which it is applied, or to the person applying such economic poison.

If an economic poison is such that a label with adequate safeguards cannot be written, it may not be registered or sold in interstate commerce, 7 U.S.C. § 135a(a)(5).

The burden of establishing the safety of a product requisite for compliance with the labeling requirements, remains at all times on the applicant and registrant. Whenever it appears that a registered economic poison may be or has become "misbranded," the Administrator is required to issue a notice of cancellation. EDF v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584 (1971).

In § 4 of FIFRA, as amended, 7 U.S.C. § 135b(c), Congress has provided extensive safeguards for those whose FIFRA registrations are challenged. Whenever an application for registration is refused, the applicant may request that the matter be referred to an advisory committee, of a size and membership of experts as determined by the Administrator, or may file objections and request a public hearing. The same options are available in case of a notice of cancellation of registration; cancellation becomes effective within 30 days after service of the notice unless the registrant petitions for reference to an advisory committee, or files objections and requests a public hearing.

In case the committee is requested, the statute provides that the committee shall submit a report and recommendation as to registration as soon as practicable after submission to the committee, but not later than 60 days unless the period is extended by the Administrator for another 60 days. Within 90 days after receipt of the committee's report the Administrator shall make his determination as to registration, by issuing an order with findings of fact. Then the applicant or registrant has 60 days to file objections and request a public hearing for the purpose of receiving material evidence. The Administrator is required to take action — as soon as possible, but not more than 90 days, after completion of the hearing — by issuing an order granting, denying, or cancelling the registration, or requiring modification of the claims or labeling.

Hence a substantial time, likely to exceed one year, may lapse between issuance of notice of cancellation and final order of cancellation, as provided by the various 60-day and 90-day periods set forth. In addition, there is the possibility that a cancellation order might be stayed pending court review in this court or another appropriate circuit court of appeals. 7 U.S.C. § 135b(d).

The elaborate procedural protection against improvident cancellations emphasizes the importance of the immediate suspension provision available under § 4 of FIFRA, for use when appropriate:

Notwithstanding any other provision of this section, the Administrator may, when he finds that such action is necessary to prevent an imminent hazard to the public, by order, suspend the registration of an economic poison immediately. In such case, he shall give the registrant prompt notice of such action and afford the registrant the opportunity to have the matter submitted to an advisory committee and for an expedited hearing under this section.

Because of the potential for delay, and consequent possibility of serious and irreparable environmental damage from an erroneous decision on suspension, a refusal to suspend is a final order reviewable immediately, EDF v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093 (1970).³

B. Recent Decisions Concerning DDT

We now turn to recent decisions concerning EPA's administration of the pesticide control statutes in light of our expanding national commitment to environmental rehabilitation. In EDF v. Hardin, supra, we held that EDF had standing to challenge official determinations under the FIFRA as representative of those "adversely affected" by the environmental impact of DDT. We concluded that the Secretary of Agriculture's failure to act on EDF's request for suspension of DDT registrations for an appreciable time was reviewable as "tantamount to an order denying suspension," 428 F.2d at 1099. The case was remanded either for a "fresh determination" on EDF's suspension request or for elucidation of basis for refusal "in sufficient detail to permit prompt and effective review," 428 F.2d at 1100.

Some three months later EDF again sought review of the EPA's explicit refusal either to order suspension or to issue notices of cancellation for all uses of DDT, EDF v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584 (1971). The findings accompanying the EPA's refusal to issue notices of cancellation clearly demonstrated recognition that a "substantial question" existed as to the safety of DDT. Since "that is the standard for the issuance of cancellation notices under the FIFRA," 439 F.2d at 595, we remanded the case again, with instructions to issue notices for all DDT registrations "and thereby commence the administrative process." We adhered to our earlier holding that the decision not to suspend was reviewable immediately. Since the Administrator again had not explained the reasons for his refusal to suspend, we asked "once more . . . for a fresh determination on that issue," id. at 596. We left the Administrator free to explain his decision in terms of the general considerations at work in pesticide suspension cases or by discussion of the factors specifically relevant to DDT that influenced his decision. See id.:

If regulations of general applicability were formulated, it would of course be possible to explain individual decisions by reference to the appropriate regulation.

It may well be, however, that standards for suspension can best be developed piecemeal, as the Secretary evaluates the hazards presented by particular products.

We emphasized, in both EDF v. Ruckelshaus, and Wellford v. Ruckelshaus, 142 U.S.App.D.C. 88, 439 F.2d 598 (1971), that the "FIFRA confers broad discretion on the Administrator . . . not merely to find facts, but also to set policy in the public interest," 439 F.2d at 601. We...