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Rohm & Haas Co. v. EPA

ELR Citation: 16 ELR 20924
Nos. No. 86-0980, 24 ERC 1341/(D.D.C., 04/15/1986)

The court holds that the decision of the Environmental Protection Agency (EPA) to register the soybean pesticide of plaintiff's competitor under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) did not violate FIFRA's exclusive use provision, 7 U.S.C. §136a(c)(1)(D)(1), nor does it violate EPA's regulations. The court first holds that EPA's decision to register the pesticide Tackle did not violate FIFRA's exclusive use provision. Plaintiff's competitor provided, and EPA relied upon, data independent from the evidence plaintiff had included in its earlier registration application. Moreover, FIFRA's exclusive use provision does not require a competitor to make an identical data submission to that of an earlier- registered manufacturer before EPA may register the second pesticide. The court holds that EPA did not violate its own regulations by not requiring the second applicant to submit the additional tests it had required of plaintiff. EPA determined that the applicant had satisfied all registration requirements, a determination that involves scientific and regulatory expertise. Also, the four tests EPA required of plaintiff but not of its competitor are only required upon findings of crop pesticide residues, and the competitor's data showed no such crop residues. Although EPA has set a tolerance for the active ingredient in plaintiff's and its competitor's pesticides, the regulations do not require that additional tests be conducted whenever a tolerance has previously been set. The court notes that plaintiff's failure to show a substantial likelihood of success on the merits makes it unnecessary to determine whether plaintiff would be irreparably harmed absent injunctive relief. Nonetheless, it expresses doubt that plaintiff could establish irreparable injury, as plaintiff has a potential legal remedy under the Tucker Act, if it is correct on the merits, for a taking of private property for a public use.

Counsel for Plaintiff
Patrick M. Raher
Hogan & Hartson
815 Connecticut Ave. NW, Washington DC 20036
(202) 331-4500

Counsel for Defendant
Marilyn Perry Jacobsen
Department of Justice
10th & Constitution Ave. NW, Washington DC 20530
(202) 633-2000