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Merrell v. Thomas

Citation: 17 ELR 20317
No. No. 85-4026, 807 F.2d 776/25 ERC 1541/(9th Cir., 12/31/1986) Aff'd

The court holds that the Environmental Protection Agency (EPA) does not have to comply with the National Environmental Policy Act (NEPA) and prepare an environmental impact statement (EIS) when it registers pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The court holds that FIFRA's pesticide registration process, which was amended in 1972 to allow for specific, limited opportunities for public participation and consideration of environmental impact ensures consideration of environmental impacts. The difference between the FIFRA registration process and NEPA's requirements indicates that Congress intended that NEPA's similar requirements did not apply to FIFRA. FIFRA's public notice and public participation procedures are materially different from what NEPA would require, and are also incompatible with NEPA as a practical matter. Furthermore, Congress' failure to require compliance with NEPA even after FIFRA was later amended on several occasions and especially when considered in light of the substance of those amendments, evidences that Congress acquiesced to EPA's interpretation that NEPA is inapplicable to FIFRA. Applying NEPA to the FIFRA registration process would sabotage FIFRA's delicate machinery, which balances environmental and industrial concerns, as well as other social benefits of pesticide use. Moreover, the environmental effects standard of FIFRA differs from the standard under NEPA for preparing an EIS: FIFRA intentionally strikes a different balance between environmental harm and economic, social, and environmental benefits than does NEPA. The court declines to hold, as the district court did, that FIFRA's procedures are the functional equivalent of NEPA.

The court next holds that under the "Special Review" process, any interested person may request that EPA review a pesticide's registration if there is significant evidence that its use poses an unreasonable risk to health or environment. The court rejects the argument that the FIFRA registration review process is worthless because it does not allow public participation before the registration decision is made, as would an EIS. Although the public would be afforded greater opportunity to participate if NEPA applied, Congress chose a more limited procedure.

[The district court's opinion appears at 15 ELR 20532.]

Counsel for Plaintiff-Appellant
Michael Axline, John Bonine
Pacific Northwest Resources Clinic
Univ. of Oregon Law Center, Eugene OR 94703
(503) 686-3823

Counsel for Defendant-Appellee
Kenneth W. Weinstein
McKenna, Conner & Cuneo
1575 Eye St. NW, Washington DC 20005
(202) 789-7500

John A. Bryson
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2740

Before Kennedy and Kozinski, JJ.