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Northwest Coalition for Alternatives to Pesticides v. Browner

ELR Citation: 27 ELR 20387
Nos. 94-1100 (JR), 941 F. Supp. 197/(D.D.C., 10/11/1996)

The court holds that the U.S. Environmental Protection Agency (EPA) must release to environmental groups the Chemical Abstract System (CAS) numbers and common names of all but four inert ingredients in six pesticides. The court first rejects the argument of an intervening pesticide trade association that all information pertaining to pesticide inert ingredients is per se exempt from disclosure under Exemption 3 of the Freedom of Information Act (FOIA). Exemption 3 provides for withholding information that another federal statute prohibits from disclosure, if that other statute establishes particular criteria for withholding or refers to particular types of matters to be withheld. The association argued that §10(d)(1)(C) of the Federal Insecticide, Fungicide, and Rodenticide Act is such a withholding statute, but the court holds that the plain language of §10 does not satisfy the narrow requirements of Exemption 3.

The court next holds that EPA and the association failed to support adequately the claim that FOIA Exemption 4's prohibition on the disclosure of trade secrets applies. The association's submission effectively acknowledges that the release of general identifying information about inert ingredients does not reveal formulas, and both EPA and the association have conceded that disclosing the common name of an inert ingredient may not reveal exactly which one of a class of ingredients sharing the same common name is used in a particular pesticide. The court, therefore, rules that the claim of protection under the trade secret prong of Exemption 4 has not been adequately supported. Turning to Exemption 4's prohibition on the disclosure of confidential commercial information, the court holds that the association's assertion that the manufacturer of Aatrex 80W would be commercially injured if compelled to disclose its formula fails to address specifically whether disclosure of the common names and CAS numbers would result in competitive harm to the manufacturer. Also, EPA's assertions with respect to the inert ingredients in Aatrex 80W do not sustain its burden of demonstrating competitive harm. With respect to two of the inert ingredients in Weedone-LV4, there is nothing to disclose. The common name and CAS number of one ingredient do not appear on the Confidential Statement of Formula (CSF), and the other ingredient is identified on the CSF only by trade name, not by common name or CAS number. The record fails to show that release of the requested information without a third inert ingredient's trade name identification would cause competitive harm.

With respect to the pesticide Roundup, the identity of three inert ingredients has been publicly disclosed and is, therefore, no longer subject to confidentiality. With respect to a fourth ingredient, because the environmental groups are only seeking the common name and not the trade name of the specific components, EPA and the trade association failed to demonstrate competitive harm. EPA and the trade association also failed to demonstrate competitive harm with respect to the inert ingredients of the pesticide Velpar and three inert ingredients of the pesticide Garlon 3A. EPA and the association have, however, made the necessary showing of competitive harm with respect to the CAS number of the fourth inert ingredient in Garlon 3A. As to the pesticide Tordon 101, the names and CAS numbers of three inert ingredients have been publicly disclosed, and EPA and the trade association failed to demonstrate that competitive harm would result from disclosing the information for a fourth ingredient. The CAS number for a fifth ingredient, however, is subject to protection under Exemption 4, even though its common name has been disclosed and is not confidential. Finally, the court holds that the environmental groups' Administrative Procedure Act (APA) claim that EPA arbitrarily and capriciously failed to follow its own regulations in determining that the information should be withheld as confidential is moot. APA review against applicable standards is the stuff of "reverse" FOIA cases.

Counsel for Plaintiffs
Lynne Bernabei, Debra Katz
Bernabei & Katz
1773 T St. NW, Washington DC 20009
(202) 745-1942

Counsel for Defendant
Douglas A. Wickham, Ass't U.S. Attorney
U.S. Attorney's Office
5806 Judiciary Center Bldg.
555 4th St. NW, Washington DC 20001
(202) 514-7566