OREGON ENV. COUNCIL v. Kunzman

• Decision Date: 26 April 1985
• Docket Number: Civ. No. 82-504-RE.
• Citation: 614 F. Supp. 657
• Parties: OREGON ENVIRONMENTAL COUNCIL; Citizens For the Safe Control of the Gypsy Moth; Elaine Olsen and Glen Olsen, Plaintiffs, and Friends of the Earth; National Coalition Against the Misuse of Pesticides, Plaintiffs/Intervenors, v. Leonard KUNZMAN, Director, State of Oregon, Department of Agriculture, State of Oregon, Department of Agriculture; United States Department of Agriculture; John R. Block, Secretary, United States Department of Agriculture; et al., Defendants. and Oregonians For Food and Shelter, Inc., Defendants/Intervenors.
• Court: U.S. District Court — District of Oregon

614 F. Supp. 657

OREGON ENVIRONMENTAL COUNCIL; Citizens For the Safe Control of the Gypsy Moth; Elaine Olsen and Glen Olsen, Plaintiffs and Friends of the Earth; National Coalition Against the Misuse of Pesticides, Plaintiffs/Intervenors, v. Leonard KUNZMAN, Director, State of Oregon, Department of Agriculture, State of Oregon, Department of Agriculture; United States Department of Agriculture; John R. Block, Secretary, United States Department of Agriculture; et al., Defendants and Oregonians For Food and Shelter, Inc., Defendants/Intervenors.

Civ. No. 82-504-RE.

United States District Court, D. Oregon.

April 26, 1985.

Larry N. Sokol, Jolles, Sokol & Bernstein, P.C., Portland, Or., John E. Bonine, Michael D. Axline, Ralph Bradley, Bradley & Gordon, Eugene, Or., for plaintiffs and plaintiffs/intervenors.

Charles H. Turner, U.S. Atty., Thomas C. Lee, Asst. U.S. Atty., Portland, Or., Dorothy R. Burakreis, R.W. Rodrigues, Elizabeth Ann Peterson, Land and Natural Resources Div., General Litigation Section, U.S. Dept. of Justice, Washington, D.C., John DiLorenzo, Jr., Brendan Stocklin-Enright, DiLorenzo & Dietz, Portland, Or., for defendants and defendants/intervenors.

OPINION

REDDEN, District Judge:

BACKGROUND

Plaintiffs commenced this suit in Spring of 1982 seeking to enjoin the spraying of carbaryl over 6,400 acres in Salem, Oregon. The spraying was the crux of a program designed to eradicate gypsy moths discovered in that urban area. Plaintiffs alleged that the spray program violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332 (1976), the Administrative Procedure Act (APA), 5 U.S.C. §§ 702 and 706 (1976) and several other statutes or regulations.

After a trial on the merits I determined that the federal defendants had not violated NEPA. On appeal, the Ninth Circuit determined that the federal defendants had in fact violated NEPA by failing to prepare adequate site specific environmental statements. Oregon Environmental Council v. Kunzman, 714 F.2d 901, 905 (9th Cir. 1983).

On January 26, 1984, I issued a permanent injunction prohibiting federal defendants from implementing any program for aerial broadcast spraying of carbaryl in populated areas in Oregon until they prepared a legally adequate Environmental Impact Statement (EIS). On March 16, 1984, federal defendants issued a new Programmatic Environmental Impact Statement (PEIS) for gypsy moth eradication and suppression programs in the United States. Plaintiffs challenged the PEIS by filing a motion for a temporary restraining order, preliminary injunction and an order to show cause to prevent federal defendants from aerial broadcast spraying anywhere in the United States pursuant to the March 16, 1984 PEIS. Plaintiffs alleged that the PEIS was legally deficient in a number of ways.

On May 3, 1984, Friends of the Earth, National Coalition Against the Misuse of Pesticides moved the court for an order allowing it to intervene in plaintiffs' motion. I granted the motion on the same day. Following a number of postponement requests by both sides, a final hearing date was set for September 25, 1984. A pretrial conference was scheduled for August 31, 1984.

On August 20, 1984, the government withdrew the contested PEIS, issuing its intent to supplement it. At the pretrial conference the government informed the court that it would have a draft supplement for public review by November 1, 1984. The draft supplement was not made available to the public, however, until December 29, 1984. A 45 day comment period followed the issuance, after which the government began preparation of the final EIS as supplemented.

On March 1, 1985, Oregonians for Food and Shelter, Inc. moved the court for an order granting it permission to intervene on behalf of defendants. That motion was granted on March 29, 1985. Meanwhile, the final Environmental Impact Statement (FEIS) as Supplemented (FEIS), for the eradication and suppression of gypsy moths was filed on March 23, 1985.

Plaintiffs challenged the adequacy of the FEIS on numerous grounds and a trial on the merits was held April 16-18, 1985. For the reasons set forth below I enjoin the use of carbaryl, trichlorofon, acephate and diflubenzuron in Oregon effective this date, and enjoin the use of the same synthetic chemical sprays elsewhere in the United States effective January 1, 1986. The use of Bacillus thuringiensis (B.t.) is not enjoined in Oregon or elsewhere in any program based upon the current Final Environmental Impact Statement as Supplemented, 1985.

At trial plaintiffs alleged that they were precluded from commenting on the FEIS's worst case analysis (WCA) because it was "tacked on" to the March 1984 PEIS at the last minute. Plaintiffs further challenged the WCA on the grounds that it did not mention that diflubenzuron might cause cancer, or that children and chemically sensitive persons would be adversely affected by the use of the synthetic pesticides discussed in the FEIS. Plaintiffs also contended that the WCA did not consider the expected synergistic or cumulative effects of the synthetic pesticides and other toxic agents in the environment. Additionally, plaintiffs alleged, the WCA underestimates the period the synthetic pesticides remain in the environment and their absorption rates.

Plaintiffs also criticized the use of acceptable daily intake (ADI) and no observable effect level (NOEL) figures in computing health risks to humans. Plaintiffs also argued that defendants failed to fill "data gaps" as statutorily required and that the alternatives to synthetic pesticides were buried in the body of the FEIS. Plaintiffs also challenged the FEIS on the ground that it does not give a total estimate of the number of people that might develop cancer as a result of spraying the synthetic pesticides discussed. Finally, plaintiffs contend that the FEIS fails to meet the regulatory requirements of brevity and clarity.

The PEIS was withdrawn in August 1984 and from then to the present, federal defendants have contended that the court lacks jurisdiction to review the EIS in any form because there is no final agency action.

A. NEPA's Requirements and Purpose

Section 102(2)(c) of NEPA requires the preparation of an EIS whenever "major Federal actions significantly affecting the quality of the human environment" are undertaken. Clauses (i) through (v) specify the content of the EIS and establish the adequacy requirement. These requirements are expanded and defined by regulations promulgated by the Council on Environmental Quality (CEQ). The CEQ is an agency established by Title II of NEPA for the purpose of promulgating advisory rules and regulations and to review and evaluate federal programs.

Although the CEQ is advisory in nature, federal courts have accorded it great deference. Environmental Defense Fund, Inc. v. Hoffman, 566 F.2d 1060 (8th Cir.1977); Silentman v. Federal Power Commission, 566 F.2d 237 (D.C.Cir.1977); State of Alaska v. Carter, 462 F.Supp. 1155 (D.Alaska 1978).

The CEQ regulations state that the purpose of an EIS is to serve as an action forcing device to insure that the policies and goals of the Act are infused into ongoing and proposed federal programs. An EIS is to provide a "full and fair discussion of significant environmental impacts" and inform the public, as well as decisionmakers, of available alternatives which would avoid or minimize adverse effects. An EIS is to inform the public and decisionmakers, in clear and succinct language, of proposed federal action, the harms and health risks associated with the proposed actions, and any reasonable alternatives.

B. Standard of Review

NEPA does not expressly provide for judicial review of agency actions but the APA does. Also, courts have uniformly held that judicial review of agency decisions is implied by NEPA. Calvert Cliffs Coordinating Committee, Inc. v. United States Atomic Energy Commission, 449 F.2d 1109 (D.C.Cir.1971); Environmental Defense Fund, Inc. v. Corps of Engineers of the United States Army, 470 F.2d 289 (8th Cir.1972), cert. denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160 (1973). When a FEIS is filed it is subject to judicial review for compliance with NEPA.

The adequacy of an EIS depends upon whether it was prepared in observance of the procedures required by NEPA, 5 U.S.C. § 706(2)(D). See also, Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir.1974) (en banc). Under this standard of review, courts employ a "rule of reason" that inquires whether an EIS contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences. Trout Unlimited, Inc. v. Morton, 509 F.2d 1276, 1283 (9th Cir.1974). Although this is a flexible standard not readily susceptible to a precise definition, several courts have attempted to explain it.

In Silva v. Lynn II, 482 F.2d 1282 (1st Cir.1973), the court held that the impact statement must allow the court to determine whether the agency made a "good faith effort" to take environmental values into account. To meet this requirement the impact statement must fully explain its inquiry, analysis and reasoning.

The Court in Warm Springs Dam Task Force v. Gribble, 565 F.2d 549 (9th Cir. 1977), requires the reviewing court to make a pragmatic judgment as to whether the EIS's form, content and preparation fostered both informed decisionmaking and informed public participation.

The Second Circuit explains these two approaches in Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011, 1029 (2nd Cir.1983). The Court said:

the ... impact statement must set forth sufficient information for the general public to make an informed evaluation, ... and for the decisionmaker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be derived from the proposed action ... the impact statement gives assurance that the stubborn

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