Jump to Navigation
Jump to Content

Union Carbide Agric. Prods. Co. v. Costle

Citation: 10 ELR 20846
No. No. 79-6200, 632 F.2d 1014/15 ERC 1113/(2d Cir., 09/24/1980)

The Second Circuit Court of Appeals reverses the issuance of a preliminary injunction against the Environmental Protection Agency's (EPA's) use of efficacy and hazard test data submitted by a pesticide producer pursuant to registration under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Plaintiffs argued that the data were common law trade secrets in which they had a property interest and hence the disclosure and use provisions of the 1978 amendments constitute a taking of property in violation of the Fifth Amendment. The Second Circuit first rejects the notion that it may reverse the trial court only if there is an abuse of discretion or misinterpretation of law; where there is no evidentiary hearing in the trial court, the court of appeals is in as good a position to evaluate the motion papers. The court next finds that the lower court misapplied the standard for preliminary injunction; where there is a motion to stop a mandated government action which is in the public interest, more than a "fair ground for litigation" must be shown by the movant in addition to a threat of irreparable injury. The court further concludes that the lower court must be reversed also if the alternate standard for apreliminary injunction, plaintiffs' showing of a likelihood of success on the merits, is applied. Plaintiffs' seeking declaratory and injunctive relief, rather than damages, on Fifth Amendment grounds raises difficult questions not answerable on the record. Additional difficult questions are whether all or part of the data can be characterized as trade secrets and whether the statute actually effects a taking. Furthermore, the lower court failed to distinguish between use of the data by EPA and its disclosure to the public. Finally, plaintiffs have failed to show that they are lacking an alternate remedy under the Tucker Act. Thus, since plaintiffs have failed to show that they are likely to succeed on the merits of their claim, they are not entitled to a preliminary injunction.

Counsel for Plaintiffs-Appellees
Robert L. Ackerly, John D. Conner
Sellers, Conner & Cuneo
1575 I St. NW, Washington DC 20005
(202) 789-7605

Allan J. Berlowitz
Arthur, Dry & Kalish
1230 Avenue of the Americas, New York NY 10020
(212) 489-4510

Counsel for Defendants-Appellants
Michael H. Dolinger, Ass't U.S. Attorney; William M. Tendy, U.S. Attorney; Peter C. Salerno, Ass't U.S. Attorney
One St. Andrew's Plaza, New York NY 10007
(212) 791-0055

Edward C. Gray, Deputy Assoc. General Counsel
Environmental Protection Agency, Washinton DC 20460
(202) 755-2511

Joined by Feinberg and Haight,* JJ.