Merrell v. Block

No. 81-6138-E (D. Or. April 14, 1983)

After finding that the United States Forest Service (USFS) and the Bureau of Land Management (BLM) violated the National Environmental Policy Act (NEPA), the court enjoins segments of defendants' plans for spraying herenicides within the Siuslaw National Forest in Oregon. At the outset, the court rejects defendants' standing defense, ruling that plaintiff, who has alleged that he lives in or very close to the areas to be sprayed, has established the requisite injury in fact. On the merits, the court rules that provisions in the Council on Environmental Quality NEPA regulations requiring jointly prepared environmental impact statements (EISs) when several agencies are involved in an action do not require preparation of an EIS simply because actions of several agencies, USFS, BLM, and the Environmental Protection Agency (EPA), overlap. Nor does NEPA require these agencies to integrate their disparate regulatory programs relating to herbicides.

The court agrees with plaintiff, however, that defendants erred in simply inserting the results of safety research EPA developed in registering the herbicides into their environmental analyses, instead of conducting their own examination of the site-specific environmental effects of the herbicides in question. The case law makes it clear that agencies in the defendants' position must do more than simply trot out studies developed by EPA when registering chemicals. Finally, after declaring moot plaintiff's challenge to the adequacy of the EPA research data, the court orders defendants to halt the disputed spraying programs.

[The Ninth Circuit's affirmance, with modifications, of the court's judgment is reported at 14 ELR 20241 — Ed.]

Counsel for Plaintiff
Paul E. Merrell
Route 2, Box 190, Tidewater OR 97390
(no telephone listed)

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

[14 ELR 20225]

Belloni, J.:

Facts

Plaintiff is a resident of Tidewater, Oregon, in the Siuslaw National Forest area. He lives, works, and operates a small farm there. Defendants, the U.S. Forest Service (USFS) and the Bureau of Land Management (BLM), have for a number of years sprayed the public forest lands in the area with various herbicides and pesticides as part of their programs of forestry management. The chemicals used are licensed by the defendant Environmental Protection Agency (EPA) in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136 et seq. The USFS has prepared environmental impact statements (EIS) concerning the use of herbicides in the region in 1974, 1975, 1976, 1978, and 1981, which have been supplemented by site-specific environmental assessment reports (EAR).The BLM has also prepared EISs. The most recent is a program EIS, designed to cover a ten-year period from 1978-87, with annual updates.

Early in 1981 the USFS prepared an EAR on the use of herbicides in the Siuslaw National Forest. The result was a finding of no significant impact; in other words, the USFS concluded that there was no need to complete a new, separate EIS for that specific forest area.

In February 1981 plaintiff petitioned EPA, USFS, and BLM to declare EPA a "lead agency" in a joint effort to prepare an EIS investigating the uses of herbicides in the Siuslaw National Forest. EPA denied the petition. The others evidently did not respond.

On April 8, 1981 the USFS announced its intention to spray with herbicides 6,305 acres of Siuslaw National Forest land. Immediately plaintiff filed this suit against officials of the EPA, USFS, and BLM. In the complaint he contends that these officials have violated the requirements of the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. in deciding to use herbicides in the Siuslaw National Forest. In particular, he alleges that: 1) the agencies are required by law to jointly prepare an EIS concerning the use of herbicides in the Siuslaw National Forest; 2) the USFS has proceeded with herbicide spraying before issuing a final EIS covering the effects of such spraying; 3) the agencies have an unfulfilled duty to integrate the federal use of herbicides with the federal registration of those herbicides; 4) the USFS and BLM have violated the NEPA requirement that agencies examine the environmental effects of their proposed actions in that they simply adopted herbicide registration data previously done by EPA; and 5) the agencies have failed to acknowledge "gaps in relevant information or scientific uncertainty" as to the health effects of herbicide use, and should be required to fill such gaps with either new research or a "worst case analysis." The complaint ends with a prayer that the agencies be enjoined from using any of the herbicides mentioned until a joint EIS has been prepared by all of the agencies involved.

Defendants responded with a motion for summary judgment. Plaintiff cross-moved for summary judgment. After considering the briefs submitted and the oral arguments presented by the parties I hold in favor of plaintiff in part and in favor of defendants in part.

Opinion

The facts in this case are not in dispute. The only issues are ones of law. The case is, therefore, appropriately decided on motions for summary judgment. FED. R. CIV. P. 56(c); Beckham v. Safeco Insurance Co. of America, 691 F.2d 898, 902 (9th Cir. 1982). In ruling on the motions for summary judgment I am mindful that in NEPA cases my charge is primarily to determine whether the Act's procedural requirements have been met, not to substitute my own judgment as to the proper agency decision. [14 ELR 20226] Stryckers Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227 [10 ELR 20079] (1980); Save Lake Washington v. Frank, 641 F.2d 1330, 1334 [11 ELR 20645] (9th Cir. 1981).

A. Plaintiff's standing

Defendants argue that plaintiff has no standing to bring this lawsuit. They complain that plaintiff does not provide "any proof of any relationship of agency actions to himself."

The constitutional requirements for standing in federal court are that plaintiff must allege some actual or threatened personal injury, "fairly traceable" to the challenged conduct of defendants, and which can be redressed by favorable court decision. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982); Scott v. Rosenberg, Civ. no. 81-5387 (9th Cir. Jan. 21, 1983) slip op. at. 5. Here plaintiff has alleged that he lives in or very close to the areas that will be sprayed with the disputed herebicides, that his personal health is threatened, and that an injunction issued by this court will prevent the threatened injury. There are no affidavits to the contrary. The constitutional requirements for standing have been satisfied.

B. Jointly prepared EIS

One of plaintiff's major arguments is that the defendant federal agencies are required as a matter of law to jointly prepare a site-specific EIS on herbicide spraying in the Siuslaw National Forest. Cited in support for this proposition are the 1979 NEPA implementing regulations developed by the Council on Environmental Quality and several references in FIFRA mandating agency cooperation.

The CEQ regulations, 40 C.F.R. § 1501.5, provide as follows:

Al lead agency shall supervise the preparation of an environmental impact statement if more than one federal agency either

(1) Proposes or is involved in the same action; or

(2) Is involved in a group of actions directly related to each other because of their functional interdependence or georaphical proximity.

Plaintiff argues that since BLM and USFS are spraying in the same areas, the "geographical proximity" requirement is satisfied. Furthermore, he argues that since neither BLM nor USFS can use any herbicides without EPA registration the "functional interdependence" requirement is satisfied as well. Thus, he concludes, the agencies must jointly prepare an EIS. This argument is illogical. NEPA requires an EIS only when there is "major federal action significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). Plaintiff's argument is that the mere fact of agencies acting in concert requires the drafting of an EIS. This completely ignores the major federal action requirement of the statute. And the quoted regulation itself does not require an EIS to be drafted. It merely describes who must draft one once the initial determination to draft it has been made.

Plaintiff also argues that certain references in the federal pesticides law require a jointly prepared EIS in this case. FIFRA does state that the EPA Administrator "shall conduct research into integrated pest management in coordination with the Secretary of Agriculture." 7 U.S.C. § 36r. It also says that the "Administrator in coordination with the Secretary of Agriculture shall identify those pests that must be brought under control." Id. § 136w-3. However, it is untenable to suggest that from these broad references to simple agency cooperation can be conjured up a statutory requirement that EPA and USFS must prepare a joint, site-specific, EIS. Plaintiff cites no authority for such a proposition. And absent any authority I decline to stretch the law as he requests.

C. Premature spraying

Plaintiff next argues that the USFS should not have proceeded with its decision to spray with the herbicides before completing its program EIS on such activities. Since the filing of the complaint, however, the USFS has completed a 1981 program EIS covering herbicide spraying in the Pacific Northwest. This issue is now moot.

D. Integration of pesticide programs

Plaintiff also asserts that the federal agency defendants are in violation of NEPA in that they have "an unfulfilled duty to integrate the federal use of pesticides with the federal regulation of pesticides." Presently EPA decides whether a chemical substance is safe enough to be registered under FIFRA. 7 U.S.C. § 136a. Then the users, among them USFS and BLM, conduct research, EIS studies and the like to determine whether the chemicals can safely be used in certain areas and under certain conditions. Plaintiff argues that NEPA requires a jointly administered, single regulatory program covering all aspects of pesticide and herbicide research, registration, and use.

Plaintiff's argument has no merit. The portions of NEPA relied on say only that:

In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources

42 U.S.C. § 4331(b). This statement of general purpose has been held to require agencies to change their statutory responsibilities. It has never been interpreted as a mandate to reorganize complete administrative programs. Even if it were, its language is couched in such discretionary term — "to use all practicable means . . . consistent with other essential considerations of national policy" — that I could not rule that as a matter of law the agencies have failed to carry out their obligations in this case.

There is similar exhortatory language in the CEQ regulations. In one section federal agencies are encouraged to "integrate the requirements of NEPQ with other planning and environmental review procedures required by law . . . ." 40 C.F.R. 1500.2(c); see also id. § 1500.5(g), 1502.25. This law, too, has never been interpreted to require the action plaintiff now urges.

Finally, there are the general references in FIFRA to interagency cooperation mentioned above. 7 U.S.C. §§ 136r, 136w-3. However, Congressional urging to cooperate is not a mandate to create a new jointly administered regulatory program. the agencies do cooperate by assisting one another in their research efforts and by commenting on one another's programs. There is simply nothing in the law to indicate that anything more is required.

E. Abdication of research responsibilities

When USFS and BLM completed their EARs they did not do any actual research on the health effects of using the listed herbicides in the area. Instead, they simply relied on research already completed by EPA when that agency registered the chemicals under FIFRA. This, plaintiff argues, is illegal, for NEPA mandates case by case research on the effects of federal agency action.

Here plaintiff is correct. The agencies have clearly violated the procedures required by NEPA. In Citizens Against Toxic Sprays v. Bergland, 428 F. Supp. 908 [7 ELR 20325] (D. Or. 1977), Judge Skopil faced the identical problem. The USFS simply cited in its EIS research provided by EPA herbicide registration studies.He refused to allow the USFS to abdicate its responsibilities to conduct site-specific research:

Nor can the Forest Service avoid its obligations under NEPA by arguing that any necessary scientific inquiry must be conducted by the EPA. NEPA mandates a case by case balancing judgment on the part of federal agencies. The only agency in a position to make such a judgment is the agency with the overall responsibility for the proposed federal action, the agency to which NEPA is specifically directed . . . . The responsible agency may not attempt to abdicate to any other agency merely because that agency is authorized to develop and enforce environmental standards . . . . Thus the mere fact that a program involves the use of substances registered under FIFRA does not exempt the program from the requirements of NEPA.

Id. 927. And in Southern Oregon Citizens Against Toxic Sprays v. Watt, Civ. No. 79-1098-FR [13 ELR 20174] (D. Or. Sept. 9, 1982), Judge Frye ruled the same way on the very same facts. I follow those rulings in this case.

[14 ELR 20227]

F. Data gaps

Plaintiff's final argument is that not only have the agencies failed to support their EARs with proper research, but also the research that does exist reveals "gaps in relevant information or scientific uncertainty." These gaps are so important, plaintiff argues, that defendants should be required to fill them with new data or assume a worst case analysis in making their EARs. Cited in support for the argument is 40 C.F.R. § 1502.22.

This issue is moot in light of my ruling on the previous issue. The supposed gaps exist in the EPA registration research. It is the EPA registration research that USFS and BLM cannot rely on in doing their environmental assessments. So any gaps in the EPA registration research is irrelevant, and any ruling on this issue would be little more than an advisory opinion.

Conclusion

It is hereby ordered that plaintiff's motion for summary judgment is granted on the issue of defendants' failure to properly prepare their EARs. Therefore, defendants are enjoined from further spraying until they have have fully complied with this opinion.