Oregon Environmental Council v. Kunzman, Civ. No. 82-504-RE.

• Decision Date: 06 May 1986
• Docket Number: Civ. No. 82-504-RE.
• Citation: 636 F. Supp. 632
• 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, Plaintiff/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., Defendant/Intervenors.
• Court: U.S. District Court — District of Oregon

636 F. Supp. 632

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, Plaintiff/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., Defendant/Intervenors.

Civ. No. 82-504-RE.

United States District Court, D. Oregon.

May 6, 1986.

Larry N. Sokol, Mary Gray Holt, Jolles, Sokol & Bernstein, P.C., Portland, Or., Michael D. Axline, John Bonine, Ralph Bradley, Bradley & Gordon, Eugene, Or., for plaintiffs and plaintiff/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, U.S. Dept. of Justice, Washington, D.C., John DiLorenzo, Jr., Brendan Stocklin-Enright, DiLorenzo & Dietz, Portland, Or., for defendants and defendant/intervenors.

REDDEN, District Judge:

On April 26, 1985, 614 F.Supp. 657 (D.C. Or.1985), I issued an Opinion in which I found the worst case analysis contained in the Final Environmental Impact Statement for the Eradication and Suppression of Gypsy Moths (FEIS) to be in violation of 40 C.F.R. § 1502.8. I therefore issued an injunction prohibiting the use of carbaryl, diflubensuron, acephate, and trichlorfon, effective immediately in Oregon and on January 1, 1986, on a nationwide basis. Defendants now move to lift the injunction on the grounds that they have produced an addendum to the FEIS which brings the entire impact statement into compliance with 40 C.F.R. § 1502.8 and all other regulations. Plaintiffs vigorously oppose the motion on numerous grounds. After careful consideration of all arguments, and being mindful of the important issues and potential environmental risks, I grant defendants' motion and dissolve the injunction.

BACKGROUND

Following the issuance of my April 26, 1985 Opinion, defendants moved for reconsideration which I denied. In that Order I noted that defendants had three options: appeal, rewrite the worst case analysis or do nothing. Defendants decided to appeal and rewrite the worst case analysis. On February 18, 1986, defendants filed a "Final Addendum to the Final Environmental Impact Statement as supplemented-1985." That document contains three "appendices" to the FEIS. Appendix H is termed the "Plain Language Summary of the Health Risks." Appendix I is a verbal interpretation of the data presented in tabular form in Appendix F (the worst case analysis) and toxicity information presented during last year's trial. Appendix J contains public comments and agency responses on the plain language version of the worst case analysis.

STANDARD

My review of the FEIS and addendum is a limited one. I must determine whether the agency made a "good faith effort" to take environmental concerns into account. Silva v. Lynn, 482 F.2d 1282, 1284 (1st Cir.1973). To meet this requirement the impact statement must fully explain its inquiry, analysis and reasoning. Id.

The Second Circuit has explained the requirement as follows:

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' ... In so doing the EIS ... gives assurance that the stubborn problems or serious criticisms have not been swept under the rug.

Sierra Club v. United States Corps of Engineers, 701 F.2d 1011, 1029 (2nd Cir. 1983).

A court is limited to reviewing the agency's procedural duty and is not authorized to substitute its judgment for that of an agency concerning the wisdom or prudence of a proposed action. California v. Block, 690 F.2d 753, 761 (9th Cir.1982). See also Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (court cannot interject itself within the area of discretion of the executive as to the choice of the action to be taken).

My review is solely for the purpose of determining whether the Department of Agriculture complied with the National Environmental Policy Act, 42 U.S.C. § 4331 et seq., and its regulations. If I am satisfied that it has my review is at an end. Id.

DISCUSSION

The sole issue is whether the addendum presents the worst case analysis in a readable fashion and clearly and concisely identifies the risks associated with the four synthetic insecticides. Both sides have submitted lengthy and detailed affidavits from experts explaining a myriad of factors to be considered when determining the readability of any given document. Plaintiffs experts advocate the use of statistical computer models which analyze the number of words per sentence as well as the length of the words used. Defendants would supplement this analysis with other subjective consideration. Plaintiffs counter this approach by arguing that it is too simplistic and that its application to this document is inappropriate.

Plaintiffs' experts are Dr. Mark Shinn and Dr. Gwyneth Britton. Dr. Shinn states that Appendices H and I are not readable by the general public. In reaching this conclusion Dr. Shinn subjected the addendum to a series of tests whereby words and phrases are randomly selected and fed into a microcomputer which has been programmed with several statistical models. In all, Dr. Shinn analyzed the addendum using five separate reading indices. These indices indicate that Appendix H reads at an eighth to eleventh grade level and that Appendix I is written at the college and graduate school level. Dr. Shinn states that it is widely accepted that the general public reads at the sixth grade level and thus the addendum is not readable and easily understood by its intended readers.

Dr. Britton states readability encompasses theoretical constructs drawn from developmental psychology, information processing, psycholinguistics and linguistics. While many outside factors influence the readability of a document, she states, reading formulas, such as those employed by Dr. Shinn, "are the best predictive device we have" to determine readability. Dr. Britton states that the addendum is not understandable by the general public. In assessing the document she employed several methods of processing words, sentences and the use of secondary communication tools (overlays, illustrations, tables, etc.). She found the readability level to be uneven throughout the addendum, thus making it more confusing. She advocates redoing the document with a targeted audience of an eighth grade reading level.

Defendants have offered an affidavit by Dr. John Campbell in support of their position that the addendum is readable. Defendants state that the addendum was submitted to Dr. Campbell on several occasions during the drafting for comments on how to make it more understandable. Dr. Campbell outlines the suggestions he made during that process and notes that each suggestion was adopted.

Specifically, Dr. Campbell suggested that "because paragraphs contain explanations of key ideas, I suggested that the writers pay particular attention to sentence structure. The terms used to discuss the logic of a paragraph are unity (focus) and coherence (flow). That is, does a paragraph as a unit of logical thought focus on a discernible idea, and are the supporting sentences organized to help the reader follow the flow of information." Campbell affidavit, page 19. Dr. Campbell also suggested that the paragraphs contain topic sentences, which Dr. Britton finds "admirable." Britton affidavit, page 22.

Dr. Campbell explains that readability is determined at the "moment the reader's emotional, cognitive and linguistic backgrounds interact with each other, with the topic and with the proposed purposes for reading and with the author's choice of semantic and syntactic structures all within the setting" in which the reading is being done. Campbell affidavit, pages 5-6. Dr. Campbell then listed six reader variables to be considered. Dr. Britton states that "my main disagreement with Dr. Campbell's definition of reading is that it is simplistic.... I agree that reading is an abstract process based partially on the interaction of the reader with the material. The reader variable sic listed are adequate, though I would add physiological state (i.e., hungry, frightened, etc.) as well as reading ability." Britton affidavit, pages 4-5.

Dr. Campbell criticizes Dr. Shinn's use of reading formulas as being too simplistic and not subjective enough. Dr. Britton challenges Dr. Campbell's methods as being too subjective and simplistic. Dr. Shinn rebuffs Dr. Campbell's criticism because no question regarding the results of his "test" was raised. Dr. Campbell refutes Dr. Shinn's challenge on a variety of grounds. And so it goes, with each expert defending his or her methods and calling the other side's expert incorrect, ill-advised and against the generally accepted concepts held by their profession. Nevertheless, I have taken each expert's comments into consideration in my review of the addendum, paying attention to the red flags each side suggests either lends to or detracts from readability.

I have read the addendum in its entirety once before consulting the experts and once following the review of their affidavits. I understood it both times. I find that it adequately conveys the risks associated with the use of the four synthetic insecticides in an understandable and readable manner. The subject matter of the addendum is difficult in that it discusses chemicals with complex names which trip the tongue, and states hypothetical risks of worst case scenarios....