On April 14, 1971, the U.S. District Court for the District of Columbia denied plaintiffs' motion for a preliminary injunction in Environmental Defense Fund v. Hardin (Mirex), 1 ELR 20207. See also 1 ELR Dig. [44]. Plaintiffs sought to bar the Secretary of Agriculture from undertaking a program to control the imported fire ant in several southeastern states by aerial application of the pesticide Mirex. Defendant's motion to dismiss was earlier denied December 1, 1970. On its face, the court's ruling raises questions as to exactly what remains to be litigated at trial since Judge Gasch, in declining to issue the requested preliminary injunction, held not only that plaintiffs had failed to prove they would suffer irreparable injury in the event of such denial and that they had further failed to demonstrate the likelihood of success when the matter is finally determined, but also, that defendants had complied with the substantive requirements of NEPA, the ultimate issue of the case itself. It would appear that to prevail at trial plaintiff would have to persuade the court not only that defendant's conclusions in balancing the dangers of Mirex against anticipated positive results were incorrect, but that defendant's research was less diligent than the court stated in its ruling denying plaintiff's request for preliminary relief.

Neither the court nor the Department of Agriculture was under any illusions concerning the danger of pesticide. The bait is prepared by impregnating one and one-quarter pounds of screened corn cob grits with soybean oil containing one-seventeenth of an ounce of Mirex, the standard dose for an acre of infested land. When administered in large doses, Mirex kills shrimp, crabs, and other marine organisms, as well as other species of ants. In heavy doses, it induces tumors in animals and is a potential danger as a carcinogen for man. The Environmental Protection Agency has commenced administrative procedures to determine whether the registration of Mirex under the Federal Insecticide, Fungicide, and Rodenticide Act should be cancelled. The court concluded that the outcome of the EPA review would have no effect upon the court's own jurisdiction to consider the matter independently under NEPA. Nor, it held, did the existence of other regulatory legislation excuse defendant from compliance with NEPA. As did the court in National Helium Corp. v. Morton, infra, the court here viewed the presence of other, more specific federal legislation as complementary to rather than preemptive of requirements under NEPA. Compare Ely v. Velde, infra. Discussing various NEPA provisions as they applied to the case at bar, the court stated that in specifying certain procedural requirements with which executive agencies must comply before initiating a program that will significantly affect the environment, "Congress did not intend by the Act to relocate or diminish the decision-making responsibility currently existing with respect to such programs, but it did intend to make such decision making more responsive and more responsible." 1 ELR 20207. Though couched in generalities, the court's summary and interpretation of the various NEPA provisions that it found pertinent does impose clear and positive duties upon administrative agencies, and it does so in language sufficiently sweeping so as to be of interest to future litigants: