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Environmental Defense Fund v. EPA

Citation: 2 ELR 20228
No. No. 71-1365, 465 F.2d 528/4 ERC 1523/(D.C. Cir., 05/05/1972)

On petition for review, the decision of the Administrator of the Environmental Protection Agency (EPA) not to suspend all registered uses of the chlorinated hydrocarbon pesticides aldrin and dieldrin under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) (see Reasons Underlying The Registration Decisions Concerning Products Containing DDT, 2, 4, 5-T, Aldrin and Deildrin, 1 ELR 30028) is remanded for further articulation of the EPCA's reasons so that the court can fully perform its supervisory duty. In exercising his broad discretion under FIFRA to find facts and set policy, the Administrator established general policy guidelines governing decisions on initial or continued registration, including suspension. These guidelines conclude that individual decisions would depend on a complex administrative calculus in which the nature and magnitude of the foreseeable hazards of a pesticide's use would be weighed against the benefits of that use. Suspension would be ordered where continued registration pending completion of the cancellation proceedings would pose an imminent hazard to the public, and this determination would include an evaluation of the benefits accruing from such interim use. In the discussion of the reasons for not ordering the suspension of aldrin-dieldrin, the Statement of Reasons mentions the uses of these pesticides and analyzes the potential harm inherent in their short-run use, but the benefits from their short-run use are not discussed. This specific suspension decision must be explained in terms of the ingredients announced by the Administrator as comprising the EPA's policies governing suspension even though these policies were established by the Administrator in exercise of the discretionary authority delegated to him by FIFRA. The analysis of benefits should include an evaluation of alternative methods to achieve these benefits. The other aspects of EPA's conclusion of non-imminency of harm are not irrational, because they are supported by respectable scientific authority in the record. However, EPA should take advantage of the opportunity on remand to further explicate the reasons for its finding regarding the carcinogenicity of aldrin and dieldrin.

The language of FIFRA granting standing to those aggrieved by agency action is similar to the language of the Administrative Procedure Act recently construed by the Supreme Court in Sierra Club v. Morton. Although the issue was not raised on appeal, and it is uncertain whether it must be raised by the court sua sponte, the court concludes preliminarily that petitioner's allegation that it is composed of citizens dedicated to the protection of the environment is adequate to cover challenges to decisions affecting carcinogenic inputs and other matters which obviously affect the health of individual members of petitioner.

The Administrator's decision is not vacated, but the record is remanded for proceedings consistent with this opinion and to allow the Administrator to reevaluate his findings in view of the recently issued report of the aldrin-dieldrin scientific advisory committee.

Counsel for Petitioner
William A. Butler
Environmental Defense Fund
1712 N Street NW
Washington, D.C. 20036

Edward Lee Rogers
Environmental Defense Fund
PO Drawer 740
Stony Brook, New York 11790

Edwin Berlin
Berlin, Roisman and Kessler
1712 N Street NW
Washington, D.C. 20036

James W. Moorman
1050 Mills Tower
San Francisco, California 94104

Counsel for Respondents
Michael C. Farrar Asst. General Counsel
Thomas H. Kemp Attorney
Environmental Protection Agency
401 M Street SW
Washington, D.C.

L. Patrick Gray, III Asst. Attorney General
Alan S. Rosenthal Attorney
Department of Justice
Washington, D.C. 20530