Save Our Ecosystems v. Watt

Civ. No. 83-6090-E (D. Or. May 9, 1983)

The court rules that the "worst case" analysis prepared in an environmental impact statement (EIS) for proposed herbicide spraying on public lands in Oregon is inadequate. The Council on Environmental Quality's National Environmental Policy Act regulations requre agencies to discuss the results and probability of a "worst case" when proceeding in the face of uncertainty. The worst case analysis for the herbicide program is deficient because it fails to assume for purposes of discussion that the herbicides are carcinogens and mutagens since some of the scientific literature indicates that the herbicide 2,4-D does cause cancer. Because the EIS discusses only the probable consequences of spraying, not the worst possible consequences together with their probability, it is inadequate. The court enjoins further spraying until a proper analysis is prepared.

Counsel for Plaintiffs
Ralph A. Bradley
Bradley & Gordon
1397 Willamette St., Eugene OR 97401
(503) 343-8247

John E. Bonine
1052 W. 10th St., Eugene OR 97402
(503) 345-2095

Counsel for Defendant
Charles H. Turner, U.S. Attorney; Thomas C. Lee, Ass't U.S. Attorney
312 U.S. Cthse., 620 SW Main St., Portland OR 97205
(503) 221-2101

[13 ELR 20887]

Belloni, J.:

This complaint for injunctive relief was filed under the National Environmental Policy Act of 1969, as amended, 42 U.S.C. § 4321 et seq. (NEPA), alleging the inadequacy of an Environmental Assessment prepared by the Bureau of Land Management (BLM) in connection with proposed herbicide spraying of Eugene District public lands. Specifically, plaintiffs assert that the worst case analysis prepared by the BLM is inadequate. Plaintiffs pray that the spraying be enjoined until an adequate worst case analysis is prepared and promulgated. This matter was tried on its merits on March 23 and 29, 1983.

The purpose of annual herbicidal spraying on public forest lands is to reduce the quantity of vegetation competing with the more desirable conifers, so as to promote reforestation. The BLM proposes to spray between 6000 and 7000 acres of public forest lands in its Eugene District area in 1983, using herbicides including 2,4-D and Tordon, a compound which contains pioloram.

A final Environmental Impact Statement titled Vegetation Management with herbicides: Western Oregon, 1983 through 1987 was filed with the Environmental Protection Agency (EPA) on February 9, 1979. The document was approved by this Secretary of the Interior Cecil Andrus on March 16, 1979. This programmatic EIS contemplated that the BLM would perform a yearly environmental assessment of the site specific environmental impacts, which would supplement the EIS to the extent that that document did not adequately describe the environmental effects.

In accordance with 40 C.F.R. § 1502.22 and the holding of the court is Southern Oregon Citizens Against Toxic Sprays v. Watt (S.O.C.A.T.S.) No. 79-1098 [13 ELR 20174] (Opinion entered September 9, 1982, and clarified by order entered October 20, 1982), the BLM prepared a worst case analysis of the use of herbicides in the Eugene District area, among others, as part of its Environmental Assessment for 1983. The worst case analysis was provided to plaintiffs herein on February 12, 1983. On February 17, 1983, a Decision Statement was issue, wherein the BLM made the finding that the spring spraying program would have no significant impact beyond those already analyzed in the programmatic EIS, and decided to proceed with the spring 1983 spraying.

The worst case analysis prepared by the BLM sets out "no observed effect" dosage levels for each of the herbicides proposed for use. These are levels at which the herbicides have not appeared to have any toxic effects on test subjects. The worst case analysis treats them as the highest dosage levels which are safe for human beings exposed to the herbicides. By the BLM's own admission, however, the "no observed effect" levels have not been proven to be safe dosage levels from the point of view of the potential, if any, of these herbicides to cause cancer or to cause mutation of the genes.

The BLM then attempted to calculate the highest dosages of the herbicides that might be received by the persons applying the herbicides, on the one hand, and by persons who live near or use the affected areas, on the other hand. In calculating the maximum possible exposures, the BLM apparently assumed that the herbicide labels, regulations, and warnings would be obeyed. Within [13 ELR 20888] the limits imposed by that assumption, the maximum exposures posited by the BLM appear to be quite generous.

The BLM then compared its calculated maximum exposure levels to the observed no effect levels for toxic effects other than cancer and genetic effects, and concluded that the proposed use of the herbicides would entail no human health hazards. The BLM also stated conclusorily [sic] that "current literature does not indicate that potential chronic genetic effects would result from anticipated worst case dosage rates received during forestry applications of herbicides."

Plaintiffs criticize several aspects of the worst case analysis. Their central criticism is of its treatment of the possibility that the herbicides proposed for use have carcinogenic and mutagenic effects, and cause birth defects. Plaintiffs maintain that there is some degree of uncertainty in the scientific community as to the potential of these herbicides, particularly 2,4-D, for causing cancer and genetic mutation. The BLM apparently concurs that uncertainty exists, or at least that additional data would be necessary to achieve certainty that 2,4-D, for example, does not cause cancer. However, the BLM argues that no reliable positive evidence exists that 2,4-D does cause cancer; and that in the absence of any data correlating incidence of cancer to specific dosage levels of these herbicides, they cannot make meaningful projections of the chemical's potential, if any, for causing cancer.

I am satisfied by the evidence presented at trial that some degree of uncertainty exists in the scientific community as to the potential of some or all of these herbicides for causing cancer and genetic mutation. It is this uncertainty which necessitated the preparation of the worst case analysis. S.O.C.A.T.S. v. Watt, No. 79-1098 FR. Nothing in NEPA or the regulation under if forbids an agency to proceed in the face of an uncertainty as to possible adverse impacts. But 40 C.F.R. § 1502.22 does require an agency to discuss the most pessimistic predictionsa of the results which might occur as a result of proceeding in the face of an uncertainty, and to analyze the probability or improbability of their occurrence. See Forty Most Asked Questions Concerning CEQ's NEPA Regulations, 46 Fed. Reg. 18,026, 18,032 (1981); Sierra Club v. Sigler, 695 F.2d 957 [13 ELR 20210] (5th Cir. 1983). Plainly, the worst result that can occur as a result of proceeding in the face of uncertainty as to whether an herbicide causes cancer is that it does cause cancer. This worst case analysis is deficient in that it at no point assumes for purposes of discussion, that these herbicides are carcinogens and mutagens. Once that assumption has been made and discussed, the agency is required by regulation to evaluate the probability or improbability that it is true. At that point, the agency's opinion that these effects are "extremely unlikely to occur" can and should be set forth in detail.

The BLM protests that without data correlating these adverse effects to specific dosage amounts of the herbicides, any projections it might attempt of the possible incidence of cancer or genetic effects would be pure fantasy. On the basis of the evidence presented to me at trial, I find that a segment of the credible scientific community believes that these herbicides may initiate cancer at any dosage level. The BLM is required, for purposes of the worst case alaysis only, to adopt this pessimistic assumption, and to discuss public exposure to the herbicides in light of it. It may — indeed must — then proceed to evaluate the probability or improbability of carcinogenicity in view of all the evidence at its disposal, not merely the most pessimistic evidence.

For the reasons set forth above, the worst case analysis is inadequate. It appears that its author considered it his function to discuss the probable consequences of the use of these herbicides, rather than the worst possible consequences of their use together with the probability that the worst consequences will actually occur. The latter approach is the proper one in the preparation of a worst case analysis. See S.O.C.A.T.S. v. Watt, and Sierra Club v. Sigler, both cited within.

Plaintiffs also also complain that, at most, a five day comment period was afforded to the public to comment on the worst case analysis. They claim that the public was entitled to a 45 day comment period, since the worst case analysis is part of the program's EIS. S.O.C.A.T.S. v. Watt; 40 CFR § 1506.10(c). Plaintiff's contention is correct.

Since I have concluded that the worst case analysis prepared by the BLM is inadequate, I need not reach the question raised by plaintiffs concerning stay of the spraying during an administrative appeal. Because of the inadequacy of the worst case analysis, further spraying of the herbicides in the Eugene District area of the BLM pursuant to the programmatic EIS filed on Fegruary 9, 1979, will be enjoined pending the preparation and promulgation of a proper worst case analysis.

Each party shall submit a proposed form of injunction consistent with this opinion not later than May 10, 1983. A hearing will be held at the United States Courthouse in Eugene, Oregon on May 12, 1983, to determine the final wording of the injunction and to determine whether the injunction should be stayed pending appeal.