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Oregon Envtl. Council v. Kunzman

Citation: 12 ELR 20769
No. No. 82-504-RE, 17 ERC 1605/(D. Or., 05/04/1982) Injunction denied

After refusing to enjoin aerial spraying of insecticide in South Salem, Oregon, 12 ELR 20766, 20769, the court rules that it has authority under the Administrative Procedure Act (APA) to review plaintiffs' allegations that the proposed gypsy moth eradication program violates the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and Federal Aviation Administration (FAA) regulations. While neither FIFRA nor FAA regulations provide a private right of action, judicial review is proper under the APA if not expressly limited by Congress. However, the court finds nothing in FIFRA or its legislative history which indicates a clear intent to preclude review under the APA. Turning to the substantive issues, the court rules that defendants' plan to spray does not violate § 136j of FIFRA, which requires that the method of spraying conform with label specifications. It concludes that the spraying plan does not violate the specific precautionary statements on the label. In addition, the plan does not violate FAA regulations. Thus, the court again denies plaintiffs' application for injunctive and declaratory relief.

Counsel are listed at 12 ELR 20766.