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Environmental Defense Fund v. Blum

Citation: 8 ELR 20748
No. No. 78-0577, 458 F. Supp. 650/12 ERC 1088/(D.D.C., 09/27/1978)

The court rules that the Environmental Protection Agency's (EPA's) conditional approval of a one-year exemption under § 18 of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) permitting use of the pesticide ferriamicide against the fire and in Mississippi must be remanded to the Agency because of violations of the Administrative Procedure Act (APA). The Agency's exemption decision was the product of informal rule making subject to the notice and comment requirements of § 553 of the APA and it may not be overturned except where arbitrary or not in compliance with procedures required by law. EPA's conclusions that the fire ant infestation in Mississippi constitutes an emergency within the meaning of § 18 and that no effective alternative treatment exists were neither arbitrary nor irrational. In making that determination, however, the Agency relied on information in ex parte communications which were submitted after the record was formally closed and were thus never subjected to adversarial comment. This procedural deficiency necessitates remanding the case to the Agency. The court also rules that EPA was not required to prepare an environmental impact statement in conjunction with the exemption, and that the Agency's decision is not invalidated by improper political influence.

Counsel for Plaintiff
William A. Butler
Environmental Defense Fund, Inc.
1525 18th St. NW, Washington DC 20036
(202) 833-1484

Ronald J. Wilson
810 18th St. NW, Washington DC 20006
(202) 628-3160

Counsel for Defendants
Fred Disheroon
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2716

Alan H. Carpien
Environmental Protection Agency, Washington DC 20460
(202) 755-0076

Counsel for Intervening Defendant State of Mississippi
A. F. Summer, Attorney General; P.L. Douglas, Peter M. Stockett, Jr.
Gartin Justice Bldg., 450 High St., Jackson MS 39202
(601) 354-7130

Donald J. Mulvihill, R. Bruce Dickson
Cahill, Gordon & Reindel
Suite 900, Federal Bar Bldg., Washington DC 20006
(202) 659-3030