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Oregon Envtl. Council v. Kunzman

Citation: 12 ELR 20766
No. No. 82-504-RE, 17 ERC 1598/(D. Or., 04/29/1982)

The court rules that a site-specific environmental impact statement (EIS) is not required under the National Environmental Policy Act (NEPA) prior to aerial broadcast spraying of insecticide to eradicate the gypsy moth in South Salem. Initially, the court holds that plaintiffs do not have a private right of action under the Federal Insecticide, Fungicide, and Rodenticide Act or to enforce Federal Aviation Administration (FAA) regulations. The court also concludes that plaintiffs cannot sue under 42 U.S.C. § 1983 for alleged violations of FAA regulations. Rejecting plaintiffs' contention that defendants must prepare a site-specific EIS, the court rules that the programmatic EIS prepared by the United States Department of Agriculture Cooperative Gypsy Moth Suppression and Regulatory Program was sufficient to satisfy the requirements of NEPA. The programmatic EIS adequately discussed the effects of the insecticide on human health and the environment and alternatives. In addition, the programmatic EIS is legally sufficient because there are no significant differences between the conditions or circumstances of the specific project and those addressed in the programmatic EIS. The court also rejects plaintiffs' contention that the programmatic EIS may not be used as the EIS for the South Salem project because comments were not solicited in the South Salem area before the preparation of the programmatic EIS. An otherwise valid program should not be invalidated because the problem had not developed in South Salem at the time that comments on the draft programmatic EIS were submitted.

Counsel for Plaintiffs
Larry N. Sokol, John E. Bonine
Jolles, Sokol & Bernstein
721 SW Oak St., Portland OR 97205
(503) 228-6474

Counsel for Defendants
Dave Frohnmayer, Attorney General; John R. McCulloch Jr., Luther L. Jensen
Dep't of Justice, 100 State Office Bldg., Salem OR 97310
(503) 378-6002

Charles H. Turner, U.S. Attorney; Thomas C. Lee
312 U.S. Cthse., 620 SW Main St., Portland OR 97205
(503) 221-2101