Toward a Noisier Spring: D.C. Circuit Upholds Cancellation of DDT Registrations

Although DDT was immensely beneficial when first developed during the Second World War, its dangers, ably documented by Rachel Carson in Silent Spring, soon became apparent. One of the principal disadvantages of DDT is its persistence in the environment. But the persistence of the chemical proved to be as nothing compared with that of its manufacturers. On December 13, however, environmentalists won what appears to be the final round in a ten-year battle, first in state and then in federal forums, with the pesticide lobby and its friends in the government. On that day, the Court of Appeals for the D.C. Circuit upheld in all respects EPA's cancellation of virtually all remaining registrations for DDT.¹

The federal proceedings began in 1969, when the Environmental Defense Fund unsuccessfully petitioned the Secretaries of Agriculture and HEW under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to suspend all DDT registrations and to reduce to zero tolerances of DDT in food for human consumption. When the Secretary of Agriculture issued cancellation notices for only four uses of the chemical, all insignificant, EDF went to the Court of Appeals, which remanded the case to the Secretary for a "fresh determination" of the question. Predictably, the Secretary's fresh determination was the same as his previous decision. EDF returned to the Court of Appeals, although the defendant was now the Administrator of EPA, to which administration of FIFRA had in the meantime been transferred.

While the Administrator issued cancellation notices for all remaining registrations of insecticides containing DDT, he declined to suspend use of the chemicals pending the cancellation hearings, and again EDF went to court. The Court of Appeals directed the Administrator to reconsider his decision on interim suspension; the Administrator reconsidered, and came to the same conclusion as before. EPA subsequently held hearings on the cancellation notices. When the hearing examiner recommended that all cancellations be withdrawn, Administrator William Ruckelshaus personally reviewed the case and, overruling the hearing examiner, on June 14, 1972, ordered cancellation of all remaining registrations, except for a few limited uses, since cancelled as well. The Administrator's order left open the possibility that governmental authorities could still under certain circumstances use DDT for public health purposes, and EDF appealed this part of the ruling; the pesticide manufacturers also appealed. The decision of the D.C. Circuit, written by Judge Wilkey, denied both appeals, finding that EPA's decision was supported by "substantial evidence based on the record as a whole." It rejected the pesticide industry's claim that EPA's action was void for failure to file an environmental impact statement. The court, showing the D.C. Circuit's uncertainty on the question of EPA's obligation to file impact statements,² did not declare that a statement was not required, but rather that the "functional equivalent" of one had been supplied.

The decision came as something of a Christmas present for environmentalists. One noted that the decision represents the first time a citizens' group has succeeded in putting a halt, for once and for all, to an environmentally damaging activity of nationwide scope, and having that success affirmed by a Court of Appeals. To be sure, eleven years have passed since Silent Spring alerted Americans to the environmental devastation caused by DDT, and the history of the litigation is perhaps an ideal case study of the frustrations involved in opposing an entrenched, politically powerful industry. Nevertheless, the victory is a real one, and it signals the demise of one of the major hazards to the American environment in the postwar years.

1. Environmental Defense Fund v. Environmental Protection Agency, 4 ELR 20031 (D.C. Cir. Dec. 13, 1973). For earlier stages of this litigation, see EDF v. Finch, 1 ELR 20045 (D.C. Cir. 1970); EDF v. Hardin, 1 ELR 20050 (D.C. Cir. 1970); EDF v. Ruckelshaus, 1 ELR 20059 (D.C. Cir. 1971); EDF v. EPA, 2 ELR 20228 (D.C. Cir. 1972); EDF v. EPA, 3 ELR 20488 (D.C. Cir. 1973).

2. See Portland Cement Assoc. v. Ruckelshaus, 3 ELR 20642 (D.C. Cir. June 29, 1973); Comment, Halfway There: EPA's "Environmental Explanations" and the Duty to File Impact Statements, 3 ELR 10139 (Sept. 1973).