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05/28/70 Environmental Defense Fund v. Clifford M. Hardin

May 28, 1970





League of America, Intervenor 1970.CDC.106


Bazelon, Chief Judge, and Robinson, Circuit Judge, in chambers.


This case requires the court to consider under what circumstances there may be a judicial remedy for the failure of an administrative agency to act promptly, and what form that remedy may take.

The shipment of pesticides in interstate commerce is regulated by the Federal Insecticide, Fungicide, and Rodenticide Act , which is administered by the Secretary of the Department of Agriculture. *fn1 The Act requires pesticides and other "economic poisons" to carry labels bearing certain information, including any warnings necessary to prevent injury to people. A pesticide which fails to comply with the labeling requirement, or which cannot be rendered safe by any labeling, is "misbranded," *fn2 and the Secretary must refuse or cancel its registration as an economic poison approved for shipment in interstate commerce. *fn3

The statute establishes an elaborate procedure by which a registration may be cancelled, that begins when the Secretary issues a notice of cancellation to a registrant. *fn4 Since the statutory procedures can easily occupy more than a year, the statute also gives the Secretary the power to suspend a registration immediately if he finds such action "necessary to prevent an imminent hazard to the public." Such an interim suspension triggers an expedited version of the procedure that can lead to cancellation.

Petitioners here are five organizations engaged in activities relating to environmental protection. *fn5 On the basis of extensive evidence of the harmful effects of the pesticide DDT on human, plant, and animal life, they filed a petition with the Secretary of the Department of Agriculture requesting (1) the issuance of notices of cancellation for all economic poisons containing DDT, and (2) the suspension of registration for all such products pending the conclusion of cancellation proceedings. The Secretary issued notices of cancellation with respect to four uses of DDT, solicited comments concerning the remaining uses, and took no action on the request for interim suspension. *fn6 Petitioners filed this appeal, seeking to compel the Secretary to comply with their request. *fn7

The Secretary moved to dismiss for lack of jurisdiction, asserting that petitioners lack standing to complain of his failure to act, that there is no final order ripe for review, that any final order would nevertheless be unreviewable because it involves questions committed by law to agency discretion, and that any available relief can be afforded only by the district court on a writ of mandamus, and not by the court of appeals. Since we can accept none of those conclusions, the motion to dismiss must be denied, and the case remanded to the Secretary to provide this court with the record necessary for meaningful appellate review. *fn8 I. STANDING

The legislative history of the FIFRA refutes respondents' contention that only registrants and applicants for registration have standing to challenge the Secretary's determinations under the Act. The statute affords a right of review to "any person who will be adversely affected" by an order. *fn9 An amendment that would have limited review to registrants and applicants was considered and rejected. *fn10 The "zone of interests" sought to be protected by the statute includes not only the economic interest of the registrant but also the interest of the public in safety. *fn11 Thus petitioners have standing if they allege sufficient injury in fact to create a constitutionally justiciable case or controversy. *fn12

The injury alleged by petitioners is the biological harm to man and to other living things resulting from the Secretary's failure to take action which would restrict the use of DDT in the environment. Numerous scientific studies and several reports to government agencies have concluded that DDT has a wide spectrum of harmful effects on nontarget plant and animal species; it increases the incidence in animals of cancer and reproductive defects; and its residues persist in the environment and in the human body long enough to be found far in time and space from the original application. *fn13

Consumers of regulated products and services have standing to protect the public interest in the proper administration of a regulatory system enacted for their benefit. *fn14 The interest asserted in such a challenge to administrative action need not be economic. *fn15 Like other consumers, those who "consume" -- however unwillingly -- the pesticide residues permitted by the Secretary to accumulate in the environment are persons "aggrieved by agency action within the meaning of a relevant statute." *fn16 Furthermore, the consumers' interest in environmental protection may properly be represented by a membership association with an organizational interest in the problem. *fn17

On the basis of petitioners' uncontroverted allegations, it appears that they are organizations with a demonstrated interest in protecting the environment from pesticide pollution. Therefore they have the necessary stake in the outcome of a challenge to the Secretary's inaction to contest the issues with the adverseness required by Article III of the Constitution. II. REVIEWABILITY

Related to the question of standing is respondents' argument that the decision to suspend the registration of a pesticide as an "imminent hazard" is committed by statute to unreviewable administrative discretion. *fn18 Even if petitioners have standing to seek review of some administrative decisions under the FIFRA, respondents contend that they cannot seek review of a decision on emergency suspension. Preclusion of judicial review is not lightly to be inferred, however; it requires a showing of clear evidence of legislative intent. *fn19 That evidence cannot be found in the mere fact that a statute is drafted in permissive rather than mandatory terms. *fn20 Although the FIFRA provides that the Secretary "may" ...

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