Foundation on Economic Trends v. Heckler

• Decision Date: 16 May 1984
• Docket Number: Civ. A. No. 83-2714.
• Citation: 587 F. Supp. 753
• Parties: FOUNDATION ON ECONOMIC TRENDS, Jeremy Rifkin, Michael W. Fox, Environmental Action, Inc., Environmental Task Force, David Brower, William Turnage, Plaintiffs, v. Margaret M. HECKLER, in her official capacity as Secretary of Health and Human Services, James E. Wyngaarden, in his official capacity as Director of the National Institute of Health, Richard M. Krause, in his official capacity as Director, National Institute of Allergy and Infectious Diseases, National Institute of Health, The Regents of the University of California, a corporation, Defendants.
• Court: U.S. District Court — District of Columbia

587 F. Supp. 753

FOUNDATION ON ECONOMIC TRENDS, Jeremy Rifkin, Michael W. Fox, Environmental Action, Inc., Environmental Task Force, David Brower, William Turnage, Plaintiffs, v. Margaret M. HECKLER, in her official capacity as Secretary of Health and Human Services, James E. Wyngaarden, in his official capacity as Director of the National Institute of Health, Richard M. Krause, in his official capacity as Director, National Institute of Allergy and Infectious Diseases, National Institute of Health, The Regents of the University of California, a corporation, Defendants.

Civ. A. No. 83-2714.

United States District Court, District of Columbia.

May 16, 1984.

Edward Lee Rogers, Washington, D.C., for plaintiffs.

Judith Bartnoff, Asst. U.S. Atty., William Anderson, II, Bracewell & Patterson, Washington, D.C., for defendants.

MEMORANDUM AND ORDER

SIRICA, District Judge.

This matter is before the Court on plaintiffs' motion for a preliminary injunction and defendants opposition thereto. The plaintiffs have sought injunctive relief on their first and second causes of action which allege violations of the National Environmental Policy Act of 1969, 42 U.S.C. § 4332 (1982) ("NEPA") and the Administrative Procedure Act, 5 U.S.C. § 706 (1982) ("APA"). The plaintiffs ask this Court to enter a preliminary injunction enjoining the defendants from commencing a particular scientific experiment and all similar experimentation until the alleged violations have been corrected. The plaintiffs are three organizations and four individuals who have alleged injury by virtue of the defendants proposed actions. The federal defendants are the three federal officials responsible for the supervision of scientific research conducted at or by the National Institutes of Health (NIH). In addition, the Regents of the University of California have recently been joined as a defendant. All of the parties have submitted lengthy memoranda on the pending motion and, after hearing oral argument, the Court has decided to grant plaintiffs' motion for the reasons recited in this Memorandum.

Before discussing the reasons for this Court's ruling, a few preliminary comments should be made. First of all, this Court is not, and does not purport to be, competent to address the host of scientific issues associated with the use of the recombinant DNA. See Diamond v. Chakrabarty, 447 U.S. 303, 317, 100 S.Ct. 2204, 2212, 65 L.Ed.2d 144 (1980). The Court fully joins the comments made by plaintiffs' counsel at oral argument that none of the parties, least of all this Court, is questioning the wisdom or qualifications of the eminent scientists who have labored to insure that this new technology is used in a responsible manner. The issues that this Court must confront are narrow, legal questions. Accordingly, while speculation on the possible benefits and hazards presented by the emerging technology of genetic engineering may intrigue the parties to this litigation, the Court has no desire, authority, or competence to so speculate. This Court's sole task is to review whether the federal defendants should have issued an environmental impact statement under the circumstances of this case.

BACKGROUND

A little over a decade ago scientists developed the capability of modifying genetic material in the laboratory. Through a process of splitting and recombining a subcellular unit known as DNA, laboratory scientists could begin to control the natural processes of organism reproduction and growth. The product of this process of altering natural hereditary material is generally known by the name "recombinant DNA." The use of this technique has been limited to small organisms, usually bacteria. More importantly, the production processes wherein these new bacteria are created have been confined, until now, to the laboratory. Stated differently, scientists have not yet deliberately released any of these recombinant DNA organisms into the general environment. In a truly commendable effort, the National Institutes of Health took the initiative during the 1970's to develop responsible limitations on the use and possible misuse of recombinant DNA material. The National Institutes of Health took these early steps largely because its own research, and the research it funded, began to use recombinant DNA with increasing frequency. The Director of NIH assumed responsibility for the supervision of the NIH's efforts to promote recombinant DNA research along uniform standards. To aid the Director and his subordinates in this task an advisory committee was created. This committee, called the Recombinant DNA Advisory Committee (RAC), was, and is, primarily composed of eminent scientists in the field who advise the Director of NIH on numerous questions relating to recombinant DNA research. This lawsuit concerns the decision of the NIH Director, aided by the RAC, to permit the deliberate release of recombinant DNA material into the general environment. The plaintiffs have raised a procedural challenge to the manner in which the federal defendants have authorized deliberate release experimentation to occur. Specifically, the plaintiffs contend that the federal defendants failed to issue appropriate environmental impact statements in conformity with the terms of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2)(C), and in accordance with the regulations of the Council on Environmental Quality. 40 C.F.R. § 1500 et seq.

The experiment which prompted the plaintiffs to file their motion is currently scheduled to begin on or about May 25, 1984. Although the plaintiffs seek a preliminary injunction to temporarily halt this individual experiment, they are also seeking a broader injunction to halt all such NIH approved deliberate release experiments. Of the three approved experiments, the most imminent experiment will be conducted by scientists from the University of California at Berkeley later this month. As summarized by the University, the California experiment involves the application of a genetically altered bacteria onto a row of potatoes in northern California. See Opposition of the Regents of the University of California, Appendix. The anticipated effect of the application is to make the plants on which the bacteria is placed more frost tolerant and thereby reduce the risk of frost damage. Having completed their laboratory examination of the bacteria, the University of California scientists have sought and obtained approval from NIH to conduct a field test of this organism in northern California. All of the parties agree that this individual experiment was proposed, considered, and approved without the benefit of an environmental impact statement or assessment document.

The plaintiffs appear before the Court seeking a preliminary injunction against the defendants enjoining not only the first deliberate release experiment, but also all similar experimentation authorized by NIH. The plaintiffs argue that this first experiment should be enjoined until such time as the defendants compile an environmental impact statement. In a more general argument, the plaintiffs assert that when NIH first decided to allow any deliberate release experimentation at all, NIH officials had an obligation to engage in a more comprehensive environmental analysis than that which actually took place. In ruling on the plaintiffs' motion for a preliminary injunction this Court has looked to the four traditional factors which must be present before a court can issue a preliminary injunction. Thus the Court has examined the record to determine whether the plaintiffs have shown: (1) a substantial likelihood that they will succeed on the merits; (2) irreparable injury to plaintiffs' interests if injunctive relief is denied; (3) lack of injury to the defendants if injunctive relief is granted; and, (4) the public interest favors preliminary injunctive relief. Washington Metropolitan Transit Comm'n v. Holiday Tours, 559 F.2d 841, 844 (D.C.Cir.1977); Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C.Cir.1958).

The National Environment Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4347 (1982), was enacted by Congress to insure that the federal government would not undertake major programs or projects without first considering the potential environmental consequences. The Act places an affirmative obligation on the federal government to address potential environmental hazards in a forum open to the public before the government embarks on any particular course of conduct significantly affecting the environment. The Act itself does not dictate any particular accommodation between the frequently conflicting demands of environmental protection and the direction of federal conduct. Instead, NEPA contemplates that responsible federal officials will heed the substantive and procedural requirements set forth in the Act before reaching final decisions about major federal actions. The primary procedural requirement contained in the Act demands that federal decisionmakers compile an Environmental Impact Statement (EIS) prior to final approval of all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C).

The EIS requirement is the principal mechanism chosen by Congress to implement the environmental policies articulated in NEPA. Although the requirement of formulating an EIS accomplishes NEPA's general goal of forcing federal officials to take account of the environment, environmental impact statements perform other valuable functions in keeping with NEPA's purpose. Initially, the actual drafting of the impact statement requires the identification, adoption, and integration of various factual material which the policymaker considers probative as to the assessment of environmental hazards. Second, the drafting process affords the public an opportunity to observe and understand the reasoning of the federal policymaker. Indeed, this...