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Cohn v. Flacke

Citation: 12 ELR 20212
No. No. 40218, 444 N.Y.S. 2d 211/16 ERC 1591/(N.Y. App. Div., 10/08/1981)

The appellate court upholds the New York Department of Environmental Conservation's denial of petitioners' application to lift the current prohibition on the use of endrin and allow restricted use of the pesticide. The court rules that respondents did not act arbitrarily or irrationally. The record contains substantial proof that the use of endrin would create significant risks to humans and the environment. Respondents balanced the evidence regarding the risks and the benefits of endrin use and exercised their discretion by concluding that the risks so outweighed the benefits as to justify prohibition. Finally, the court notes that the Federal Insecticide, Fungicide, and Rodenticide Act specifically authorizes the states to regulate the sale and use of pesticides to the extent that such regulation does not allow any sale or use prohibited by the Act.

Counsel for Petitioners
Richard L. Burstein
Roemer & Featherstonhaugh
Suite 1130, Twin Towers, 99 Washington Ave., Albany NY 12210
(518) 436-7663

Counsel for Respondents
Kathleen L. Morrison
Envtl. Protection Bureau, Dep't of Law
Justice Bldg., Rm. 245, Empire State Plaza, Albany NY 12223
(518) 474-1968

Mahoney, J., joined by Sweeney, Kane, Casey, and Weiss, JJ.