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Foundation on Economic Trends v. Thomas

ELR Citation: 16 ELR 20632
Nos. No. 85-3649, 637 F. Supp. 25/24 ERC 1098/(D.D.C., 03/06/1986)

The court holds that the Environmental Protection Agency's (EPA's) issuance of an experimental use permit (EUP) for recombinant DNA- altered bacteria testing complies with the Federal Insecticide, Fungicide, and Rodenticide Act. The court first establishes that the standard of judicial review is a two-step process, requiring first, that the court determine whether the agency adhered to required procedures and second, whether the decision to issue the permit was arbitrary and capricious. The court holds that EPA satisfied the procedural requirements for issuing EUPs. Data submission requirements may be waived on a case-by-case basis and EPA's decision to grant certain waivers was reasonable. The court then holds that EPA adequately considered the toxicity of the bacteria and its potential effects on the environment, and that it gave sufficient consideration to proposed alternatives. The court rules that EPA's procedural framework is functionally equivalent to the National Environmental Policy Act, and precise adherence with the statute is not required. The court notes that a temporary local ban on the use of the bacteria in the area scheduled for testing undermines plaintiffs' claim of irreparable injury absent injunctive relief.

Under the doctrine of primary jurisdiction, the court withholds decision on the motions for summary judgment until EPA completes its ongoing investigation of the permittee Advanced Genetic Sciences for allegations of unauthorized testing. The court also denies plaintiffs' motion under Rule 56(f) of the Federal Rules of Civil Procedure seeking discovery of information not part of the agency record at the time EPA issued the EUP.

[Pleadings from this litigation appear at ELR PEND. LIT. 65881, 65898.]

Counsel for Plaintiffs
Edward Lee Rogers
1718 P St. NW, Washington DC 20036
(202) 387-1600

Counsel for Defendants
Anne Peterson, Ward Tabor
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000