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Chevron Chem. Co. v. Costle

ELR Citation: 11 ELR 20156
Nos. No. 80-2037, 641 F.2d 104/16 ERC 2004/(3d Cir., 02/04/1981) Aff'd

Affirming the district court's decision, 11 ELR 20147, the Third Circuit Court of Appeals upholds the practice of the Environmental Protection Agency (EPA), pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), of using test data submitted with applications for the registration of pesticides to evaluate applications for registration of chemically identical pesticides by other manufacturers without requiring compensation from the latter. Appellant argued that EPA's use of such data was a taking of private property and that even if the taking of data submitted after 1969 is authorized, the Act's compensation arbitration provision deprives it of the opportunity for a judicial determination of just compensation. The court first finds that prior to 1972, appellant had a right of nondisclosure but no property right in the submitted data that would prevent internal agency use of it. Since there similarly is no property interest in the test data submitted to EPA under state law, EPA's use cannot be a taking for which compensation must be paid. With respect to post-1969 data, for which registrants are entitled to compensation if used, the court finds that since there are public benefits derived from the use of data for registration of third-party applications, the use of this data is not for a private rather than a public purpose and therefore does not violate due process. Finally, because there is no protected property interest in test data beyond that created by the 1972 and subsequent amendments to FIFRA, EPA's use of the test data does not represent a taking requiring a judicial determination under the Tucker Act.

Counsel for Appellant
Richard J. Abrams, Stephen E. Herrmann
Richards, Layton & Finger
4072 Dupont Bldg., P.O. Box 551, Wilmington DE 19899
(302) 658-6541

Noble K. Gregory, Brian D. Bellardo
Pillsbury, Madison & Sutro
225 Bush St., P.O. Box 7880, San Francisco CA 94120
(415) 983-1000

Counsel for Appellee
Patrick J. Cafferty Jr., Angus Macbeth, Donald W. Stever Jr., Stephen D. Ramsey, Anne S. Almy
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5289

Gibbons, J., joined by Weis and Whipple,* JJ.