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Dow Chem., USA v. Consumer Prod. Safety Comm'n

ELR Citation: 9 ELR 20016
Nos. No. 78-1166, 459 F. Supp. 378/(W.D. La., 11/01/1978) Preliminary injunction issued

The court invalidates and preliminarily enjoins implementation of a rule promulgated by the Consumer Product Safety Commission (CPSC) relating to the classification, evaluation, and regulation of carcinogenic substances in consumer products. After finding jurisdiction to hear the suit under 28 U.S.C. §1337, the court rules that the case is ripe for review. Although the CPSC characterized the rule as intermediary and non-binding, it is the product of formal administrative proceedings, promises to have a substantial impact on the plaintiffs, and is thus final agency action subject to review. Defendant's attempt to invoke the exhaustion doctrine is inapposite because the issues involved are purely legal, and because considerations of judicial economy weigh in favor of granting review. With regard to the merits, the agency's policy statement constitutes a rule within the meaning of the Administrative Procedure Act (APA) and is intended to have application in subsequent rulemaking proceedings. The agency, however, failed to comply with the notice-and-comment requirements of that Act, and has not formally provided for review of the rule. Plaintiffs have thus shown a likelihood of success on the merits of their claim of APA violations and have demonstrated that they would be irreparably harmed by implementation of the rule. A preliminary injunction against agency reliance on the rule would not substantially harm the defendant, is in the public interest, and is therefore granted.

Counsel for Plaintiffs
Theodore L. Garrett, Corrine A. Goldstein
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6000

Gene W. Lafitte, John M. Wilson, J. Berry St. John, Jr.
Liskow & Lewis
One Shell Square, 50th Floor, New Orleans LA 70139
(504) 581-7979

Oliver P. Stockwell
Stockwell, Sievert, Vicellio, Clements & Shaddock
One Lakeside Plaza, P.O. Box 2900, Lake Charles LA 70601
(318) 436-9491

Counsel for Defendant
Francis O. Allen, Ass't U.S. Attorney
P.O. Box 33, Shreveport LA 71161
(318) 226-5277

John R. Fleder
Consumer Affairs Section, Antitrust Division
Department of Justice, Washington DC 20530
(202) 724-6890

Margaret A. Freeston,Acting General Counsel; D. Stephen Lemberg, Ass't General Counsel; David Melnick
Consumer Product Safety Commission, Washington DC 20207
(202) 634-7770