Jump to Navigation
Jump to Content

Petrolite Corp. v. EPA

Citation: 11 ELR 20751
No. No. 80-0798, 519 F. Supp. 966/18 ERC 1024/(D.D.C., 06/25/1981)

The district court holds that provisions of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizing the Environmental Protection Agency to use plaintiff's previously submitted data to support a subsequent pesticide registration application by one of plaintiff's competitors and to disclose publicly certain data do not violate the Takings or Due Process Clauses of the Fifth Amendment. The court assumes arguendo that there is a valid property interest at stake but concludes that § 3(c)(1)(D) of the Act does not interfere with plaintiff's investment-backed expectations; thus there has been no taking. Plaintiff could not have expected exclusive use of data submitted after the effective date of the challenged provision, nor has plaintiff demonstrated that its expectations regarding data submitted prior to 1970 were disrupted by the 1978 amendments to FIFRA. As to data submitted between 1970 and 1978, the court concludes that there has been some frustration of plaintiff's expectations. Such effects, however, represent a mere dimunition in the value of plaintiff's data rather than a taking since they are insignificant relative to those interferences which the U.S. Supreme Court has found not to constitute a taking and plaintiff retains the opportunity to earn a reasonable return on its investment in the data. The court also dismisses plaintiff's challenge to FIFRA's disclosure provision, § 10(d). Data submitted after the effective date of the 1978 amendments carried no expectation of nondisclosure since the statute provided otherwise. The retroactive application of § 10(d) to previously submitted data also does not constitute a taking because plaintiff has not refuted the natural presumption that it generated and submitted the data primarily for the development and registration of its own products, has not shown that the disclosure of the data pursuant to the statute destroys its ability to earn a reasonable return on its investment in the data, nor demonstrated that the protection still accorded the data by the statute is inadequate. Although plaintiff will suffer a loss of profits if its data is disclosed, such losses, by themselves, do not constitute a taking. Plaintiff also has not been deprived of due process. It has failed to show that the goals of the statute are not legitimate or that the retroactive application of the disclosure provision is not a rational means for achieving these goals. Plaintiff's procedural due process claims fall as well; once the court has concluded that the 1978 statute does not effect a taking, plaintiff's claim that government must provide notice and a hearing before each disclosure or use cannot be sustained. Finally, plaintiff has failed to satisfy the test necessary for injunctive relief. Even if the statute does effect a taking, plaintiff has not shown that it was for a private purpose, that plaintiff was without an adequate remedy to the extent that it would suffer irreparable harm, and that the balancing of harms and competing interests favored plaintiff. The court concludes that there are no genuine issues of material fact and grants defendants' motion for summary judgment.

Counsel for Plaintiff
Gerald E. Gilbert, Patrick M. Raher, David J. Hayes
Hogan & Hartson
815 Connecticut Ave. NW, Washington DC 20006
(202) 331-4500

Counsel for Defendants
Patrick J. Cafferty Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5289