Love v. Thomas
Citation: 17 ELR 20779
No. No. 87-343-RE, 668 F. Supp. 1443/25 ERC 2035/(D. Or., 04/15/1987, 05/21/1987)
The court holds that the Environmental Protection Agency's (EPA's) emergency suspension order under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) banning the use of dinoseb was arbitrary and capricious. The court first holds that it has jurisdiction under FIFRA § 6(c)(4) to review EPA's emergency suspension order. The court rejects EPA's argument that the case should be viewed as if no hearing was requested and thus judicial review of the order is precluded under FIFRA § 6(c)(2). A hearing was requested by four registrants, although they withdrew the request 10 days into the hearing. The court also rejects EPA's alternative argument that the emergency suspension order is a "final order on the question of suspension following hearing" under § 6(c)(4) and is thus reviewable exclusively in the court of appeals. The court declines to find that a hearing has been completed, since the record from the 10-day hearing is not a sufficient basis for appellate review. The court holds that plaintiffs' right to judicial review is not foreclosed by their six month delay. Although § 6(c)(4) provides for "immediate review," plaintiffs were precluded from pursuing their rights by inadequate notice. The court holds that its review is not limited to the administrative record. It is necessary to go outside the record given the emergency situation, the technical complexity, and potential deficiencies in the record due to hasty preparation.
On the merits, the court holds that EPA's emergency suspension order was arbitrary and capricious. EPA failed to consider all relevant factors when it concluded that an emergency existed. EPA did not consider the immediacy of the threatened harm, the benefits to the public of continued use of dinoseb during the suspension process, and the nature and extent of the information it had collected to determine if dinoseb should be banned immediately.
The court temporarily enjoins EPA's suspension order, holding that plaintiffs will likely succeed on the merits and the Pacific Northwest agriculture industry will be irreparably harmed if the order is not enjoined.
Counsel for Plaintiff
McEwen, Gisvold, Rankin & Stewart
1408 Standard Plaza, 1100 SW Sixth Ave., Portland OR 97204
Stoel, Rives, Boley, Fraser & Wyse
900 SW Fifth Ave., Portland OR 97204-1268
Counsel for Defendant
Thomas C. Lee, Ass't U.S. Attorney
312 U.S. Cthse., 620 SW Main, Portland OR 97205