Aldrin/Dieldrin Suspension Upheld

The Environmental Protection Agency and the Environmental Defense Fund have won two more rounds in their fight to ban production of the carcinogenic pesticides aldrin and dieldrin, but the final outcome is still far from certain.

On September 20, Chief Administrative Law Judge Herbert Perlman ruled that aldrin and dieldrin presented an "imminent hazard" to human health, within the meaning of the Federal Insecticide, Fungicide, and Rodenticide Act. According to Judge Perlman, EPA Administrator Russell Train acted correctly in deciding that production of the two chemicals should be suspended pending a final decision on their hazardousness. In a 109-page decision, the judge demolished one after another of Shell's scientific and legal arguments.

The major points which Judge Perlman made included the following:

An "imminent hazard" under the statute is one which poses "any unreasonable risk to man or the environment, taking into account economic, social, and environmental costs and benefits of any use of any pesticide." (7 U.S.C. 136 (bb))

Aldrin and dieldrin have been in use since 1948, and are now widely dispersed in the environment, in food, and in human tissues.

Cancer is on the increase, and causes widespread death, suffering, and economic loss. Because the disease has a long latency period, 20, 30, or 40 years may elapse before a particular chemical can be proved to cause cancer in humans.

Present data is unsufficient to establish whether dieldrin is carcinogenic in rats.

Experiments have shown that dieldrin causes cancer in the liver, lungs, and other organs of mice.

The scientific community and government agencies accept the use of experiments on animals to determine whether chemicals cause cancer. With one possible exception, all chemicals which cause cancer in man are also carcinogenic in animals. It is not true that there are chemicals carcinogenic in one species only.

The mouse and rat are excellent test animals, as their short lifespan makes lifetime studies practical. Tumor development in these animals is well known and understood.

Shell's arguments against use of the mouse as a test animal are based in part on "speculation and surmise," and are not generally accepted by scientific opinion.

The Delaney Amendment to the Food, Drug, and Cosmetic Act is evidence of a strong congressional policy against permitting suspected carcinogens to enter the food supply.

A chemical is to be considered carcinogenic in a species if, in a controlled experiment in which the only difference between test and control groups is that the former is exposed to the chemical, the test group shows one or more of the following: greater number of individuals with cancer; greater number of tumors in diseased animals; decrease in the latency period between exposure and the development of cancer; and the appearance of certain unusual cancers.

It is irrelevant whether various environmental factors can affect the incidence of cancer in mice, so long as the animals were assigned to test and control groups without bias and the two groups were then kept under conditions identical except for diet.

Shell's study of workers at its plant in Pernis, Holland, is "of no value," as the group was too small, unrepresentative of the population, and under examination for too brief a period.

It would be "irresponsible in the extreme" to wait for proof that dieldrin is carcinogenic in man as well as in test animals to ban the pesticides.

Although in the suspension proceeding EPA was not required to prove the chemicals unsafe — it was, rather, for Shell to prove them safe — the agency did so anyway.

The decision of the Eighth Circuit Court of Appeals in Reserve Mining v. United States, overturning a lower court's injunction against discharges of taconite into Lake Superior, is not applicable to this case. In Reserve Mining, the burden was on the government to prove the hazardousness of the discharges, whereas FIFRA puts the burden on the pesticide manufacturer or user to prove its safety.

Shell's insistence that in deciding whether to suspend, the Administrator could not take into account health evidence adduced at the cancellation hearing was "nonsensical."

The ex parte communications of which Shell complained, between Russell Train and persons involved in the case as witnesses and advocates, were unproved allegations.

FIFRA authorizes the Administrator, in deciding whether to cancel or suspend a pesticide, to "solicit the views of all interested persons, either orally or in writing, and seek such advice from scientists, farmers, farm organizations, and other qualified persons as he deems proper." If it were proved that persons involved in the cancellation proceeding in an accusatory or investigative capacity had engaged in ex parte contacts with the Administrator, Train should perhaps not be the officer rendering the final agency decision in the cancellation proceeding. Otherwise, by implication, ex parte contacts by the Administrator were not necessarily prohibited.

Shell's projections of the crop losses which would result from a ban on aldrin and dieldrin were "amazing," the product of a survey "biased in its design, responses, and presentation."

The effect on United States crops of a ban on aldrin and dieldrin would be negligible.

[4 ELR 10177]

Judge Perlman's decision was a categorical rejection of Shell's legal, scientific, and economic arguments. The opinion raises, inescapably, a troubling question: why did a series of witnesses, some of them scientists with impressive credentials, all take a position so at variance with accepted scientific knowledge?

Shell reacted angrily. In a brief appealing Judge Perlman's decision to Administrator Train, Shell's counsel, William Rogers, (since confirmed as Assistant Secretary of State for Latin American Affairs) David Lloyd, and Andrew Krulwich of the Washington law firm of Arnold & Porter, attacked the judge with a bitterness and sarcasm not often found in such documents. Apparently in an allusion to The Peter Principle, the brief mocked the judge's finding that a chemical which causes cancer in mice and which is ingested in large quantities by humans must be considered suspect:

We now turn to the significance of the Perlman Principle, that mouse tumors are enough.

C. THE PERLMAN PRINCIPLE

1. The Efficiency of the Principle

First, the Perlman Principle is really new. Had it been in effect before, it would have saved Shell and this Agency a great deal. Dieldrin causes cancer in the mouse liver. This has been known for years …

The Dick-and-Jane prose style seems an attempt to deride the judge, in striking contrast to the obsequious flattery which Rogers addressed to Judge Perlman before his oral argument.

The brief repeatedly impugned the judge's intelligence:

Indeed the Notice of Intent to Suspend and immediate hearing forced cancellation of the Judge's long-planned vacation. No doubt in consequence, as he repeatedly stated on the record, he was at the point where he felt he had "had it" with the aldrin/dieldrin case. He was, he said, mentally and physically exhausted. Even before we began our carcinogenicity evidence, he wanted the case ended. Small wonder that he had trouble understanding Shell's sophisticated evidence on the relevance of the mouse….

The brief also questioned the judge's integrity: "We have already noted that the Administrator in his August 2 Notice indicated his bias, partiality, and prejudgement…. His signal [to Judge Perlman] as to the outcome he wished was clear."

[In a telephone conversation, David Lloyd denied that the brief was in any sense derisive or an ad hominem attack on Judge Perlman. He rejected the suggestion that the brief read like an attempt to please an aggrieved client, rather than to persuade the Administrator or a court. Lloyd said that it was, on the contrary, designed solely to put forward the best legal case for Shell.]

On October 1, Administrator Train issued his decision, affirming Judge Perlman in all respects.¹ In reiterating the definition of "imminent hazard," he cited the D.C. Circuit's reminder that "a hazard may be imminent even if its impact will not be apparent for many years." Train noted the strong congressional policy in favor of keeping carcinogenic chemicals out of food, as it was expressed in the Delaney Amendment. On re-examining the data on the effects of dieldrin on rats, Train went further than Judge Perlman, declaring himself convinced that there was a "strong probability" that dieldrin was carcinogenic in the rat. Train summarized Shell's position on the nature of carcinogens, and observed that if the company's definitions were used, it would be "practically impossible" to find any chemical to be carcinogenic. He agreed with Perlman that suspending aldrin and dieldrin would cause no significant social or economic injury to the nation or to individual growers.

Under FIFRA, any person adversely affected by the Administrator's cancellation or suspension of a pesticide may obtain judicial review by filing "in the United States court of appeals for the circuit wherein such person resides or has his principal place of business, or in the United States Court of Appeals for the District of Columbia Circuit." Within seconds after Train's decision, both Shell and EDF had filed appeals, but in different circuits. EDF was contesting EPA's refusal to order existing stocks of aldrin/dieldrin destroyed.

No party to a lawsuit ever admits to "forum-shopping," that is, attempting to have one's case heard in the court where success seems most likely. Nonetheless, it was extremely important to Shell to have its appeal considered by the Fifth Circuit, and equally important to EDF that the D.C. Circuit take the case. The time of first filing would determine which circuit court had the right to decide whether it or the other court should hear the case. It was assumed on both sides that each court was more likely to retain the case than relinquish it to the other.

Both sides were also aware that in 1973, the D.C. Circuit upheld the suspension of DDT,² while the Fifth Circuit early this year struck down Labor Department rules designed to protect farmworkers from pesticides, on grounds the government had failed to show a "grave danger" to the workers.³ Perhaps even more important, both sides knew that EDF's slender budget would be gravely strained if its lawyers had to fly back and forth between their Washington offices and New Orleans, where the Fifth Circuit sits. The situation would become still more difficult for EDF if the cancellation hearings were to recommence while the appeal was still in progress.

On the morning of October 1, therefore, lawyers from both Shell and EDF waited at EPA for Train to hand down his decision, with open telephone lines to their associates. At 9:19 a.m. the decision came down. What followed illustrates one of the most preposterous and Dickensian aspects of contemporary federal law. At the [4 ELR 10178] moment that Train's decision was filed, the clerk a representative from EDF signaled by hand to an associate, who called out "Go!" into the open phone line. On the other end of the line, in the office of D.C. Circuit court clerk, another person from EDF signaled to an EDF lawyer who immediately handed the appeal to the clerk. Shell employed a similar arrangement, except that the same person waited by the clerk's desk at EPA and then walked into the next room to the open phone line, so that several precious seconds were lost.

When the dust cleared, however, Shell was clocked into the Fifth Circuit at 8:18 a.m. New Orleans time (9:18 EDT), while EDF's appeal was not filed until 9:19 EDT. In affidavits to the D.C. Circuit, EDF pointed out that the Administrator had not rendered his decision until 9:19 a.m., and suggested that if Shell had in fact filed at 9:18, its filing was a nullity. Moreover, unlike the D.C. Circuit, the Fifth Circuit (where Shell managed to file its appeal 12 minutes before the clerk's office was officially open) does not have a stamp which registers the time of filing. The 9:18 a.m. filing time apparently came from the clerk's wristwatch or from a wall clock.

Faced with the problem of having to determine whether it had the authority to decide where the case should be heard, the D.C. Circuit asked EPA and the Justice Department, which represents EPA on appeals to circuit courts, for its opinion as to the court which should decide the case. On reviewing the affidavits, EPA and Justice determined on October 25 that by the narrowest of margins, EDF had won the race to the courthouse. The Justice Department has filed the hearing record with the D.C. Circuit, and the Fifth Circuit has been asked to transfer Shell's appeal to the D.C. court. The Fifth Circuit is expected to assent. While shell may well ask the D.C. Circuit to transfer the case back to New Orleans, alleging that this would be of greater convenience to the parties, it seems highly likely that the case will be heard on the merits in the Court of Appeals in Washington.

The aldrin/dieldrin case has demonstrated that the administrative process can work to compel economic and political power to take a back seat to considerations of human health. At the same time, the race to the courthouse, that anachronistic mixture of Bleak House and Mack Sennett, stands as a reproach to the administration of justice in the United States, and demands reform.

1. In re Shell Chemical Company, 4 ELR 30017.

2. EDF v. Ruckelshaus, 3 ELR 20488.

3. Florida Peach Growers Association v. Dept. of Labor, 4 ELR 20170 (5th Cir. Jan. 9 1974).