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National Coalition Against the Misuse of Pesticides v. EPA

Citation: 19 ELR 20539
No. No. 88-5147, 867 F.2d 636/29 ERC 1041/(D.C. Cir., 02/03/1989, 02/08/2089) Rev'd

The court holds that the Environmental Protection Agency's (EPA's) decision to permit the continued sale and use of existing stocks of chlordane and heptachlor pursuant to a settlement agreement in which the manufacturer agreed to voluntarily cancel the registrations does not violate the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The court rules that FIFRA § 6(a)(1) authorizes EPA to consider the potential additions to pesticide stocks that would occur during formal cancellation proceedings when negotiating a voluntary cancellation agreement. The statutory language and legislative history are silent on this issue. EPA interpretation facilitates voluntary cancellation settlements. Absent such authority, registrants would have incentive to contest cancellation proceedings in order to create time in which to dispose of existing stocks. A settlement that provides for less pesticide use than if EPA had initiated formal cancellation proceedings meets FIFRA § 6(a)(1)'s requirement that EPA determine that continued sale and use would not have an "unreasonable adverse effect" on the environment. The court rejects the argument that EPA could have avoided the existing stock problem by issuing a notice of intent to cancel and immediately issuing a suspension or emergency order. A suspension order requires EPA to hold a hearing, which would likely have lasted six months. A determination to issue a notice of intent to cancel a registration does not necessarily imply that EPA had determined that the standard for seeking a suspension or emergency order has been met. EPA reasonably reads FIFRA to provide different evidentiary thresholds for the three procedures EPA may pursue in cancelling a registration. An emergency cancellation requires a more vigorous showing than a notice of suspension, which in turn requires a more vigorous showing that a notice of intent to cancel. The court holds that EPA's decision not to issue a notice of suspension or pursue emergency suspension was not arbitrary and capricious. The scientific evidence on the environmental risks of the termiticides was sufficiently unsettled to justify EPA's decision to seek only an ordinary cancellation. EPA reasonably concluded that more of the termiticides would have been introduced into the environment during ensuing contested proceedings than under the settlement.

[The district court's decision is published at 18 ELR 20577.]

Counsel for Appellants
Kathleen P. Dewey
Appellate Section, Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-4519

Counsel for Appellees
Victor M. Sher
Sierra Club Legal Defense Fund, Inc.
216 First Ave. S., Ste. 330, Seattle WA 98104
(206) 343-7340

Paula Dinerstein
Lobel, Novins, Lamont & Flug
1275 K St. NW, Ste. 770, Washington DC 20005
(202) 371-6626

Before: RUTH B. GINSBURG and SILBERMAN, Circuit Judges, and GIBSON,* Senior Circuit Judge, United States Court of Appeals for the Eighth Circuit.